The Writings of Thomas Jefferson, Vol. 4 (of 9)

It is with concern, however, I am obliged to observe, that so marked has been the inattention of the British court to every application which has been made to them on any subject, by this government, (not a single answer I believe having ever been given to one of them, except in the act of exchanging a minister) that it may become unavoidable, in certain cases, where an answer of some sort is necessary, to consider their silence as an answer. Perhaps this is their intention. Still, however, desirous of furnishing no color of offence, we do not wish you to name to them any term for giving an answer. Urge one as much as you can without commitment, and on the first day of December be so good as to give us information of the state in which this matter is, that it may be received during the session of Congress.

The second article of the same instruction allows the armed vessels of Great Britain to seize for condemnation all vessels, on their first attempt to enter a blockaded port, except those of Denmark and Sweden, which are to be prevented only, but not seized, on their first attempt. Of the nations inhabiting the shores of the Atlantic ocean, and practising its navigation, Denmark, Sweden and the United States alone are neutral. To declare then all neutral vessels (for as to the vessels of the belligerent powers no order was necessary) to be legal prize, which shall attempt to enter a blockaded port, except those of Denmark and Sweden, is exactly to declare that the vessels of the United States shall be lawful prize, and those of Denmark and Sweden shall not. It is of little consequence that the article has avoided naming the United States, since it has used a description applicable to them, and to them alone, while it exempts the others from its operation by name. You will be pleased to ask an explanation of this distinction; and you will be able to say, in discussing its justice, that in every circumstance, we treat Great Britain on the footing of the most favored nation where our treaties do not preclude us, and that even these are just as favorable to her, as hers are to us. Possibly she may be bound by treaty to admit this exception in favor of Denmark and Sweden. But she cannot be bound by treaty to withhold it from us. And if it be withheld merely because not established with us by treaty, what might not we, on the same ground, have withheld from Great Britain during the short course of the present war, as well as the peace which preceded it?

Whether these explanations with the British government shall be verbal or in writing, is left to yourself. Verbal communications are very insecure; for it is only to deny them or to change their terms, in order to do away their effect at any time. Those in writing have as many and obvious advantages, and ought to be preferred, unless there be obstacles of which we are not apprized.

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

TO J. MADISON

    September 8, 1793.

I have received and am charmed with No. 5. I thought the introduction an useful lesson to others as I found it to myself, for I had really, by constantly hearing the sound, been led into a pretty free use of it myself. I struck out the passage you desired in the page. I struck out also the words "and neutrality" in the following passage, "taking the proclamation in its proper sense as reminding all concerned, that as the United States were at peace, the laws of peace and neutrality were still obligatory," also a paragraph of four lines that a minister from France was hourly expected when the proclamation issued. There was one here at the time; the other did not arrive in six weeks. To have waited that time should have given full course to the evil.

I went through Franklin with enchantment; and what peculiarly pleased me was, that there was not a sentence from which it could be conjectured whether it came from north, south, east or west. At last a whole page of Virginia flashed on me. It was in the section on the state of parties, and was an apology for the continuance of slavery among us. However, this circumstance may be justly palliated, it had nothing to do with the state of parties, with the bank, encumbered a good cause with a questionable argument. Many readers who would have gone heart and hand with the author so far, would have flown off in a tangent from that paragraph. I struck it out. Justify this if you please to those concerned, and if it cannot be done, say so, and it may still be re-established. I mentioned to you in my last that a French consul at Boston had rescued a vessel out of the hands of a Marshal by military force. Genet has, at New York, forbidden a Marshal to arrest a vessel, and given orders to the French squadron to protect her by force. Was there ever an instance before of a diplomatic man overawing and obstructing the course of the law in a country by an armed force? The yellow fever increases. The week before last about three a day died. This last week about eleven a day have died; consequently, from known data about thirty-three a day are taken, and there are about three hundred and thirty patients under it. They are much scattered through the town, and it is the opinion of the physicians that there is no possibility of stopping it. They agree it is a nondescript disease, and no two agree in any one part of their process of cure. The President goes off the day after to-morrow, as he had always intended. Knox then takes flight. Hamilton is ill of the fever, as is said. He had two physicians out at his house the night before last.

TO MR. HAMMOND

    Philadelphia, September 9, 1793.

Sir,—I have the honor to acknowledge the receipt of your two memorials of the 4th and 6th instant, which have been duly laid before the President of the United States.

You cannot be uninformed of the circumstances which have occasioned the French squadron now in New York to seek asylum in the ports of the United States. Driven from those where they were on duty, by the superiority of the adverse party in the civil war which has so unhappily afflicted the colonies of France, filled with the wretched fugitives from the same scenes of distress and desolation, without water or provisions for the shortest voyage, their vessels scarcely in a condition to keep the sea at all, they were forced to seek the nearest ports in which they could be received and supplied with necessaries. That they have ever been out again to cruise, is a fact we have never learned, and which we believe to be impossible, from the information received of their wants and other impediments to active service. This case has been noted specially, to show that no inconvenience can have been produced to the trade of the other belligerent powers, by the presence of this fleet in our harbors. I shall now proceed to more general ground.

France, England and all other nations have a right to cruise on our coasts; a right not derived from our permission, but from the law of nature. To render this more advantageous, France has secured to herself, by a treaty with us, (as she has done also by a treaty with Great Britain, in the event of a war with us or any other nation) two special rights. 1. Admission for her prizes and privateers into our ports. This, by the seventeenth and twenty-second articles, is secured to her exclusively of her enemies, as is done for her in the like case by Great Britain, were her present war with us instead of Great Britain. 2. Admission for her public vessels of war into our ports, in cases of stress of weather, pirates, enemies, or other urgent necessity, to refresh, victual, repair, &c. This is not exclusive. As then we are bound by treaty to receive the public armed vessels of France, and are not bound to exclude those of her enemies, the executive has never denied the same right of asylum in our ports to the public armed vessels of your nation. They, as well as the French, are free to come into them in all cases of weather, piracies, enemies, or other urgent necessity, and to refresh, victual, repair, &c. And so many are these urgent necessities, to vessels far from their own ports, that we have thought inquiries into the nature as well as the degree of the necessities which drive them hither, as endless as they would be fruitless, and therefore have not made them. And the rather, because there is a third right, secured to neither by treaty, but due to both on the principles of hospitality between friendly nations, that of coming into our ports, not under the pressure of urgent necessity, but whenever their comfort or convenience induces them. On this ground, also, the two nations are on a footing.

As it has never been conceived that either would detain their ships of war in our ports when they were in a condition for action, we have never conceived it necessary to prescribe any limits to the time of their stay. Nor can it be viewed as an injury to either party, to let their enemies lie still in our ports from year's end to year's end, if they choose it. Thus, then, the public ships of war of both nations enjoy a perfect equality in our ports; first, in cases of urgent necessity; secondly, in cases of comfort or convenience; and thirdly, in the time they choose to continue; and all a friendly power can ask from another is, to extend to her the same indulgences which she extends to other friendly powers. And though the admission of the prizes and privateers of France is exclusive, yet it is the effect of treaty made long ago, for valuable considerations, not with a view to the present circumstances, nor against any nation in particular, but all in general, and may, therefore, be faithfully observed without offence to any; and we mean faithfully to observe it. The same exclusive article has been stipulated, as was before observed, by Great Britain in her treaty with France, and indeed is to be found in the treaties between most nations.

With respect to the usurpation of admiralty jurisdiction by the consuls of France, within these States, the honor and rights of the States themselves were sufficient motives for the executive to take measures to prevent its continuance, as soon as they were apprized of it. They have been led by particular considerations to await the effect of these measures, believing they would be sufficient; but finding at length they were not, such others have been lately taken as can no longer fail to suppress this irregularity completely.

The President is duly sensible of the character of the act of opposition made to the serving of legal process on the brig William Tell, and he presumes the representations made on that subject to the minister of France, will have the effect of opening a free access to the officer of justice, when he shall again present himself with the precept of his court.

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

TO MR. GENET

    Philadelphia, September 9, 1793.

Sir,—In my letter of June the 25th, on the subject of the ship William, and generally of vessels suggested to be taken within the limits of the protection of the United States by the armed vessels of your nation, I undertook to assure you it would be more agreeable to the President, that such vessels should be detained under the orders of yourself or the consul of France, than by a military guard, until the government of the United States should be able to inquire into and decide on the fact. In two separate letters of the 29th of the same month, I had the honor to inform you of the claims lodged with the executive for the same ship William and the brig Fanny, to enclose you the evidence on which they were founded, and to desire that if you found it just, you would order the vessels to be delivered to the owners; or, if overweighed in your judgment by any contradictory evidence which you might have or acquire, you would do me the favor to communicate that evidence; and that the consuls of France might retain the vessels in their custody, in the meantime, until the executive of the United States should consider and decide finally on the subject.

When that mode of proceeding was consented to for your satisfaction, it was by no means imagined it would have occasioned such delays of justice to the individuals interested. The President is still without information, either that the vessels are restored, or that you have any evidence to offer as to the place of capture. I am, therefore, Sir, to repeat the request of early information on this subject, in order that if any injury has been done those interested, it may be no longer aggravated by delay.

The intention of the letter of June the 25th having been to permit such vessels to remain in the custody of the consuls, instead of that of a military guard (which, in the case of the ship William, appeared to have been disagreeable to you), the indulgence was of course to be understood as going only to cases which the executive might take, or keep possession of, with a military guard, and not to interfere with the authority of the courts of justice in any case wherein they should undertake to act. My letter of June the 29th, accordingly, in the same case of the ship William, informed you that no power in this country could take a vessel out of the custody of the courts, and that it was only because they decided not to take cognizance of that case, that it resulted to the executive to interfere in it. Consequently, this alone put it in their power to leave the vessel in the hands of the consul. The courts of justice exercise the sovereignty of this country in judiciary matters; are supreme in these, and liable neither to control nor opposition from any other branch of the government. We learn, however, from the enclosed paper, that the consul of New York, in the first instance, and yourself in a subsequent one, forbid an officer of justice to serve the process with which he was charged from his court, on the British brig William Tell, taken by a French armed vessel within a mile of our shores, as has been deposed on oath, and brought into New York, and that you had even given orders to the French squadron there to protect the vessel against any person who should attempt to take her from their custody. If this opposition were founded, as is there suggested, on the indulgence of the letters before cited, it was extending that to a case not within their purview; and even had it been precisely the case to which they were to be applied, is it possible to imagine you might assert it within the body of the country by force of arms?

I forbear to make the observations which such a measure must suggest, and cannot but believe that a moment's reflection will evince to you the depth of the error committed in this opposition to an officer of justice, and in the means proposed to be resorted to in support of it. I am therefore charged to declare to you expressly, that the President expects and requires that the officer of justice be not obstructed in freely and peaceably serving the process of his court, and that in the meantime the vessel and her cargo be not suffered to depart till the judiciary, if it will undertake it, or himself if not, shall decide whether the seizure has been made within the limits of our protection.

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

TO MR. COXE

    September 10, 1793.

Thomas Jefferson presents his compliments to Mr. Coxe. He directed a census to be sent him in the moment of receiving his note of the 5th. With respect to the placing consuls in the British Islands, we are so far from being permitted that, that a common mercantile factor is not permitted by their laws. The experiment of establishing consuls in the colonies of the European nations has been going on for some time, but as yet we cannot say it has been formally and fully admitted by any. The French colonial authority has received them, but they have never yet been confirmed by the national authority.

TO MR. MORRIS

    Philadelphia, September 11, 1793.

Dear Sir,—My late letters to you have been of August 16, 23, and 26, and a duplicate of the two first will accompany this. Yours lately received are April 4, 5, 11, 19, May 20, and June 1, being Nos. 26 to 31. I have little particulars to say to you by this opportunity which may be less certain than the last.

The north-western Indians have refused to meet our commissioners, unless they would agree to the Ohio as our boundary by way of preliminary article; and this being impossible on account of the army locations and particular sales on that side the river, the war will go on. We may shortly expect to hear that General Wayne is in motion. An infectious and mortal fever is broke out in this place. The deaths under it the week before last were about forty, the last week about fifty, this week they will probably be about two hundred, and it is increasing. Every one is getting out of the city who can. Colonel Hamilton is ill of the fever, but is on the recovery. The President, according to an arrangement of some time ago, set out for Mount Vernon on yesterday. The Secretary of War is setting out on a visit to Massachusetts. I shall go in a few days to Virginia. When we shall reassemble again may perhaps depend on the course of this malady, and on that may depend the date of my next letter.

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

TO MR. GENET

    September 15, 1793.

Sir,—The correspondence which has taken place between the Executive and yourself, and the acts which you have thought proper to do, and to countenance, in opposition to the laws of the land, have rendered it necessary, in the opinion of the President, to lay a faithful statement of them before the government of France, to explain to them the reasons and the necessity which have dictated our measures, to renew assurances of that sincere friendship which has suffered no intermission during the course of these proceedings, and to express our extreme anxiety that none may be produced on their part. This has accordingly been directed to be done by the Minister Plenipotentiary of the United States at Paris, in a letter, a copy of which I now enclose to you;[2 - See p. 31.] and, in order to bring to an end what cannot be permitted to continue, there could be no hesitation to declare in it the necessity of their having a representation here, disposed to respect the laws and authorities of the country, and to do the best for their interest which these would permit. An anxious regard for those interests, and a desire that they may not suffer, will induce the executive in the meantime to receive your communications in writing, and to admit the continuance of your functions so long as they shall be restrained within the limits of the law, as heretofore announced to you, or shall be of the tenor usually observed towards independent nations by the representative of a friendly power residing with them.

The President thought it respectful to your nation as well as yourself, to leave to yourself the restraining certain proceedings of the consuls of France within the United States, which you were informed were contrary to the laws of the land, and therefore not to be permitted. He has seen with regret, however, that you have been far from restraining these proceedings, and that the duty has devolved on him of suppressing them by the authority of the country. I enclose to you the copy of a letter written to the several consuls and vice-consuls of France, warning them that this will be done if any repetition of these acts shall render it necessary. To the consul of France at Boston, no such letter has been written. A more serious fact is charged on him, which, if proved as there is reason to expect, will render the revocation of his Exequatur an act of immediate duty.

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

TO MR. GENET

    Monticello, October 3, 1793.

Sir,—In a former letter which I had the honor of writing you, I mentioned that information had been received that M. Duplaine, vice-consul of France, at Boston, had been charged with an opposition to the laws of the land, of such a character, as if true would render it the duty of the President immediately to revoke the Exequatur, whereby he is permitted to exercise the functions of vice-consul in these United States. The fact has been since inquired into, and I now enclose you copies of the evidence establishing it; whereby you will perceive how inconsistent with peace and order it would be, to permit, any longer, the exercise of functions in these United States by a person capable of mistaking their legitimate extent so far, as to oppose, by force of arms, the course of the laws within the body of the country. The wisdom and justice of the government of France, and their sense of the necessity in every government, of preserving the course of the laws free and unobstructed, render us confident that they will approve this necessary arrestation of the proceedings of one of their agents; as we would certainly do in the like case, were any consul or vice-consul of ours to oppose with an armed force, the course of their laws within their own limits. Still, however, indispensable as this act has been, it is with the most lively concern, the President has seen that the evil could not be arrested otherwise than by an appeal to the authority of the country.

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

TO –

    Monticello, October 17, 1793.

Dear Sir,—I have carefully considered the question whether the President may call Congress to any other place than that to which they have adjourned themselves, and think he cannot have such a right unless it has been given him by the Constitution, or the laws, and that neither of these has given it. The only circumstance which he can alter as to their meeting, is that of time by calling them at an earlier day than that to which they stand adjourned, but no power to change the place is given. Mr. Madison happened to come here yesterday, after the receipt of your letter. I proposed the question to him, and he thinks there was particular caution intended and used in the direction of the Constitution, to avoid giving the President any power over the place of meeting; lest he should exercise it with local partialities. With respect to the Executive, the Residence law has fixed our office at Philadelphia till the year 1800, and therefore it seems necessary that we should get as near them as we may with safety. As to the place of meeting for the Legislature, were we authorized to decide that question, I should think it right to have it in some place in Pennsylvania, in consideration of the principles of the Residence bill, and we might furnish no pretext to that state to infringe them hereafter. I am quite unacquainted with Reading and its means of accommodation. Its situation is perhaps as little objectionable as that of Lancaster, and less so than Trenton or perhaps Wilmington. However, I think we have nothing to do with the question, and that Congress must meet in Philadelphia, even if it be in the open fields, to adjourn themselves to some other place. I am extremely afraid something has happened to Mr. Bankson, on whom I relied for continuance at my office. For two posts past I have not received any letter from him, nor dispatches of any kind. This involves new fears for the duplicates of those to Mr. Morris. I have the honor to be, with sentiments of the most perfect esteem and attachment, dear Sir, your most obedient, and most humble servant.

TO –.[3 - [Probably to Mr. Madison.]"Thomas Jefferson presents his respects to Mr. Liston, and asks the favor of the passport for his friend Thomas Kanberg, of whom he spoke to him yesterday. He is a native of the north of Europe, (perhaps of Germany,) has been known to Thomas Jefferson these twenty years in America, is of a most excellent character, stands in no relation whatever to any of the belligerent powers, as to whom Thomas Jefferson is not afraid to be responsible for his political innocence, as he goes merely for his private affairs. He will sail from Baltimore, if he finds there a good opportunity for France; and if not, he will come on here. March 27, 1798."]]

    Germantown, November 2, 1793.

I overtook the President at Baltimore, and we arrived here yesterday, myself fleeced of seventy odd dollars to get from Fredericksburg here, the stages running no further than Baltimore. I mention this to put yourself and Monroe on your guard. The fever in Philadelphia has so much abated as to have almost disappeared. The inhabitants are about returning. It has been determined that the President shall not interfere with the meeting of Congress. R. H. and K. were of opinion he had a right to call them to any place, but that the occasion did not call for it. I think the President inclined to the opinion. I proposed a proclamation notifying that the Executive business would be done here till further notice, which I believe will be agreed. H. R. Lewis, Rawle &c., all concur in the necessity that Congress should meet in Philadelphia, and vote there their own adjournment. If it shall then be necessary to change the place, the question will be between New York and Lancaster. The Pennsylvania members are very anxious for the latter, and will attend punctually to support it, as well as to support much for Muhlenburg, and oppose the appointment of Smith (S. C.) speaker, which is intended by the Northern members. According to present appearances this place cannot lodge a single person more. As a great favor, I have got a bed in the corner of the public room of a tavern; and must continue till some of the Philadelphians make a vacancy by removing into the city. Then we must give him from four to six or eight dollars a week for cuddies without a bed, and sometimes without a chair or table. There is not a single lodging house in the place. Ross and Willing are alive. Hancock is dead. Johnson of Maryland has refused Rec. L. and McE. in contemplation; the last least. You will have seen Genet's letters to Moultree and to myself. Of the last I know nothing but from the public papers; and he published Moultree's letter and his answer the moment he wrote it. You will see that his inveteracy against the President leads him to meditate the embroiling him with Congress. They say he is going to be married to a daughter of Clinton's. If so, he is afraid to return to France. Hamilton is ill, and suspicious he has taken the fever again by returning to his house. He of course could not attend here to-day; but the President had showed me his letter on the right of calling Congress to another place. Adieu.

TO MR. GENET

    Germantown, November 8, 1793.

Sir,—I have now to acknowledge and answer your letter of September the 13th, wherein you desire that we may define the extent of the line of territorial protection on the coasts of the United States, observing that governments and jurisconsults have different views on this subject.