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

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

TO J. MADISON

    July 21, 1792.

I wrote you on the 14th, since which I have no letter from you. It appears that two considerable engagements took place between France and the combined armies on the 1st and 8th of May. In the former, the French have had rather the worst of it, as may be concluded by their loss of cannon and loss of ground. In the latter, they have had rather the best, as is proved by their remaining on the ground, and their throwing relief into Conde, which had been the object of both battles. The French attacked in both. They have sent commissioners to England to sound for peace. General Felix Wimpfen is one. There is a strong belief that the bankruptcies and demolitions of manufacturers through the three kingdoms, will induce the English to accede to peace. E. R. is returned. The affair of the loan has been kept suspended, and is now submitted to him. He brings very flattering information of the loyalty of the people of Virginia to the general government, and thinks the whole indisposition there is directed against the Secretary of the Treasury personally, not against his measures. On the whole he has quieted uneasiness here. I have never been able to get a sight of Billy till yesterday. He has promised to bring me the bill of your ploughs, which shall be paid. Adieu. Yours affectionately.

TO MR. GENET

    Philadelphia, July 24, 1793.

Sir,—Your favor of the 9th instant, covering the information of Silvat Ducamp, Pierre Nouvel, Chouquet de Savarence, Gaston de Nogere and G. Blustier, that being on their passage from the French West Indies to the United States, on board merchant vessels of the United States, with slaves and merchandise, of their property, these vessels were stopped by British armed vessels and their property taken out as lawful prize, has been received.

I believe it cannot be doubted, but that by the general law of nations, the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize. Upon this principle, I presume, the British armed vessels have taken the property of French citizens found in our vessels, in the cases above mentioned, and I confess I should be at a loss on what principle to reclaim it. It is true that sundry nations, desirous of avoiding the inconveniences of having their vessels stopped at sea, ransacked, carried into port and detained, under pretence of having enemy goods aboard, have in many instances introduced by their special treaties another principle between them, that enemy bottoms shall make enemy goods, and friendly bottoms friendly goods; a principle much less embarrassing to commerce, and equal to all parties in point of gain and loss. But this is altogether the effect of particular treaty, controlling in special cases the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to control it. England has generally determined to adhere to the rigorous principle, having, in no instance, as far as I recollect, agreed to the modification of letting the property of the goods follow that of the vessel, except in the single one of her treaty with France. We have adopted this modification in our treaties with France, the United Netherlands and Russia; and therefore, as to them, our vessels cover the goods of their enemies, and we lose our goods when in the vessels of their enemies. Accordingly, you will be pleased to recollect, that in the late case of Holland and Mackie, citizens of the United States, who had laden a cargo of flour on board a British vessel, which was taken by the French frigate l'Ambuscade and brought into this port, when I reclaimed the cargo it was only on the ground that they were ignorant of the declaration of war when it was shipped. You observed, however, that the 14th article of our treaty had provided that ignorance should not be pleaded beyond two months after the declaration of war, which term had elapsed in this case by some days, and finding that to be the truth, though their real ignorance of the declaration was equally true, I declined the reclamation, as it never was in my view to reclaim the cargo, nor apparently in yours, to offer to restore it, by questioning the rule established in our treaty, that enemy bottoms make enemy goods. With England, Spain, Portugal and Austria, we have no treaties; therefore, we have nothing to oppose to their acting according to the general law of nations, that enemy goods are lawful prize though found in the bottom of a friend. Nor do I see that France can suffer on the whole; for though she loses her goods in our vessels when found therein by England, Spain, Portugal, or Austria, yet she gains our goods when found in the vessels of England, Spain, Portugal, Austria, the United Netherlands, or Prussia; and I believe I may safely affirm that we have more goods afloat in the vessels of these six nations, than France has afloat in our vessels; and consequently, that France is the gainer, and we the loser by the principle of our treaty. Indeed, we are the losers in every direction of that principle; for when it works in our favor, it is to save the goods of our friends, when it works against us, it is to lose our own; and we shall continue to lose while the rule is only partially established. When we shall have established it with all nations, we shall be in a condition neither to gain nor lose, but shall be less exposed to vexatious searches at sea. To this condition we are endeavoring to advance; but as it depends on the will of other nations as well as our own, we can only obtain it when they shall be ready to concur.

I cannot, therefore, but flatter myself, that on revising the cases of Ducamp and others, you will perceive that their losses result from the state of war, which has permitted their enemies to take their goods, though found in our vessels; and consequently, from circumstances over which we have no control.

The rudeness to their persons, practised by their enemies, is certainly not favorable to the character of the latter. We feel for it as much as for the extension of it to our own citizens, then companions, and find in it a motive the more for requiring measures to be taken which may prevent repetitions of it.

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

TO THE PRESIDENT OF THE UNITED STATES

    Philadelphia, July 31, 1793.

Dear Sir,—When you did me the honor of appointing me to the office I now hold, I engaged in it without a view of continuing any length of time, and I pretty early concluded on the close of the first four years of our Republic as a proper period for withdrawing; which I had the honor of communicating to you. When the period, however, arrived, circumstances had arisen, which, in the opinion of some of my friends, rendered it proper to postpone my purpose for awhile. These circumstances have now ceased in such a degree as to leave me free to think again of a day on which I may withdraw without its exciting disadvantageous opinions or conjectures of any kind. The close of the present quarter seems to be a convenient period, because the quarterly accounts of the domestic department are then settled of course, and by that time, also, I may hope to receive from abroad the materials for bringing up the foreign account to the end of its third year. At the close, therefore, of the ensuing month of September, I shall beg leave to retire to scenes of greater tranquility, from those which I am every day more and more convinced that neither my talents, tone of mind, nor time of life fit me. I have thought it my duty to mention the matter thus early, that there may be time for the arrival of a successor, from any part of the Union from which you may think proper to call one. That you may find one more able to lighten the burthen of your labors, I most sincerely wish; for no man living more sincerely wishes that your administration could be rendered as pleasant to yourself, as it is useful and necessary to our country, nor feels for you a more rational or cordial attachment and respect than, dear Sir, your most obedient, and most humble servant.

TO MR. GENET

    Philadelphia, August 7, 1793.

Sir,—In a letter of June the 5th, I had the honor to inform you that the President, after reconsidering, at your request, the case of vessels armed within our ports to commit hostilities on nations at peace with the United States, had finally determined that it could not be admitted, and desired that all those which had been so armed should depart from our ports. It being understood afterwards, that these vessels either still remained in our ports, or had only left them to cruise on our coasts and return again with their prizes, and that another vessel, the Little Democrat, had been since armed at Philadelphia, it was desired, in my letter of the 12th of July, that such vessels, with their prizes, should be detained, till a determination should be had of what was to be done under these circumstances. In disregard, however, of this desire, the Little Democrat went out immediately on a cruise.

I have it now in charge to inform you, that the President considers the United States as bound, pursuant to positive assurances given in conformity to the laws of neutrality, to effectuate the restoration of or to make compensation for prizes, which shall have been made of any of the parties at war with France, subsequent to the fifth day of June last, by privateers fitted out of our ports.

That it is consequently expected, that you will cause restitution to be made of all prizes taken and brought into our ports subsequent to the above-mentioned day by such privateers, in defect of which, the President considers it as incumbent upon the United States to indemnify the owners of those prizes; the indemnification to be reimbursed by the French nation.

That besides taking efficacious measures to prevent the future fitting out of privateers in the ports of the United States, they will not give asylum therein to any which shall have been at any time so fitted out, and will cause restitution of all such prizes as shall be hereafter brought within their ports by any of the said privateers.

It would have been but proper respect to the authority of the country, had that been consulted before these armaments were undertaken. It would have been satisfactory, however, if their sense of them, when declared, had been duly acquiesced in. Reparation of the injury to which the United States have been made so involuntarily instrumental is all which now remains, and in this your compliance cannot but be expected.

In consequence of the information given in your letter of the 4th instant, that certain citizens of St. Domingo, lately arrived in the United States, were associating for the purpose of undertaking a military expedition from the territory of the United States, against that island, the Governor of Maryland, within which State the expedition is understood to be preparing, is instructed to take effectual measures to prevent the same.

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

TO THE PRESIDENT OF THE UNITED STATES

    August 11, 1793.

Thomas Jefferson, with his respects to the President, begs leave to express in writing more exactly what he meant to have said yesterday. A journey home in the autumn is of a necessity which he cannot control after the arrangements he has made, and when there, it would be his extreme wish to remain. But if the continuance in office to the last of December, as intimated by the President, would, by bringing the two appointments nearer together, enable him to marshal them more beneficially to the public, and more to his own satisfaction, either motive will suffice to induce Thomas Jefferson to continue till that time; he submits it therefore to the President's judgment, which he will be glad to receive when convenient, as the arrangements he had taken may require some change.

TO –

    August 11, 1793.

Dear Sir,—I wrote you last on the 3d instant. Yours of July 30th, came to hand yesterday. Besides the present which goes by post, I write you another to-day to go by Mr. D. Randolph, who sets out the day after to-morrow for Monticello, but whether by the direct route or via Richmond is not yet decided. I shall desire that letter to be sent to you by express from Monticello. I have not been able to lay my hands on the newspaper which gave a short but true view of the intention of the proclamation; however, having occasion to state it in a paper which I am preparing, I have done it in the following terms, and I give you the very words from the paper, because just as I had finished so far, 812.15. called on me. I read it to him. He said it presented fairly his view of the matter. He recalled to my mind that I had, at the time, opposed its being made a declaration of neutrality on the ground that the Executive was not the competent authority for that, and, therefore, that it was agreed the instrument should be drawn with great care. My statement is in these words: "On the declaration of war between France and England, the United States being at peace with both, their situation was so new and unexperienced by themselves, that their citizens were not, in the first instant, sensible of the new duties resulting therefrom, and of the laws it would impose even on their dispositions towards the belligerent powers. Some of them imagined (and chiefly their transient sea-faring citizens) that they were free to indulge those dispositions, to take side with either party, and enrich themselves by depredations on the commerce of the other, and were meditating enterprises of this nature, as was said. In this state of the public mind, and before it should take an erroneous direction difficult to be set right, and dangerous to themselves and their country, the President thought it expedient, by way of Proclamation, to remind our fellow-citizens that we were in a state of peace with all the belligerent powers; that in that state it was our duty neither to aid nor injure any; to exhort and warn them against acts which might contravene this duty, and particularly those of positive hostility, for the punishment of which the laws would be appealed to, and to put them on their guard also as to the risks they would run if they should attempt to carry articles of contraband to any." Very soon afterwards we learnt that he was undertaking the fitting and arming vessels in that port, enlisting men, foreign and citizens, and giving them commissions to cruise and commit hostilities against nations at peace with us, that these vessels were taking and bringing prizes into our ports, that the consuls of France were assuming to hold courts of admiralty on them, to try, condemn and authorize their sale as legal prizes, and all this before Mr. Genet had presented himself or his credentials to the President, before he was received by him, without his consent or consultation, and directly in contravention of the state of peace existing and declared to exist in the President's proclamation, and which it was incumbent on him to preserve till the Constitutional authority should otherwise declare. These proceedings became immediately, as was naturally to be expected, the subject of complaint by the representative here of that power against whom they would chiefly operate, &c. This was the true sense of the proclamation in the view of the draughtsman and of the two signers; but H. had other views. The instrument was badly drawn, and made the P. go out of his line to declare things which, though true, it was not exactly his province to declare. The instrument was communicated to me after it was drawn, but I was busy, and only run an eye over it to see that it was not made a declaration of neutrality, and gave it back again, without, I believe, changing a tittle. Pacificus has now changed his signature to "no Jacobin." Three papers under this signature have been published in Dunlap. I suppose they will get into Fenno. They are commentaries on the laws of nations and on the different parts of our treaty with France. As yet they have presented no very important heresy. Congress will not meet till the legal day. It was referred to a meeting at my office to consider and advice on it. I was for calling them. Kin. against it. H. said his judgment was against it. But he would join any two who should concur so as to make a majority either way. R. was pointedly against it. We agreed to give our opinions separately, and though the P. was in his own judgment for calling them, he acquiesced in the majority. I pass on to the other letter; so adieu. Yours affectionately.

TO GOVERNEUR MORRIS

    Philadelphia, August 16, 1793.

Sir,—In my letter of January the 13th, I enclosed to you copies of several letters which had passed between Mr. Ternant, Mr. Genet and myself, on the occurrences to which the present war had given rise within our ports. The object of this communication was to enable you to explain the principle on which our government was conducting itself towards the belligerent parties; principles which might not in all cases be satisfactory to all, but were meant to be just and impartial to all. Mr. Genet had been then but a little time with us; and but a little more was necessary to develop in him a character and conduct so unexpected and so extraordinary, as to place us in the most distressing dilemma, between our regard for his nation, which is constant and sincere, and a regard for our laws, the authority of which must be maintained; for the peace of our country, which the executive magistrate is charged to preserve; for its honor, offended in the person of that magistrate; and for its character grossly traduced, in the conversations and letters of this gentleman. In the course of these transactions, it has been a great comfort to us to believe, that none of them were within the intentions or expectations of his employers. These had been too recently expressed in acts which nothing could discolor, in the letters of the Executive Council, in the letter and decrees of the National Assembly, and in the general demeanor of the nation towards us, to describe to them things of so contrary a character. Our first duty, therefore, was, to draw a strong line between their intentions and the proceedings of their minister; our second, to lay those proceedings faithfully before them.

On the declaration of war between France and England, the United States being at peace with both, their situation was so new and unexperienced by themselves, that their citizens were not, in the first instant, sensible of the new duties resulting therefrom, and of the restraints it would impose even on their dispositions towards the belligerent powers. Some of them imagined (and chiefly their transient sea-faring citizens) that they were free to indulge those dispositions, to take side with either party, and enrich themselves by depredations on the commerce of the other, and were meditating enterprises of this nature, as there was reason to believe. In this state of the public mind, and before it should take an erroneous direction, difficult to be set right and dangerous to themselves and their country, the President thought it expedient, through the channel of a proclamation, to remind our fellow-citizens that we were in a state of peace with all the belligerent powers, that in that state it was our duty neither to aid nor injure any, to exhort and warn them against acts which might contravene this duty, and particularly those of positive hostility, for the punishment of which the laws would be appealed to; and to put them on their guard also, as to the risks they would run, if they should attempt to carry articles of contraband to any. This proclamation, ordered on the 19th and signed the 22d day of April, was sent to you in my letter of the 26th of the same month.

On the day of its publication, we received, through the channel of the newspapers, the first intimation that Mr. Genet had arrived on the 8th of the month at Charleston, in the character of Minister Plenipotentiary from his nation to the United States, and soon after, that he had sent on to Philadelphia the vessel in which he came, and would himself perform the journey by land. His landing at one of the most distant ports of the Union from his points both of departure and destination, was calculated to excite attention; and very soon afterwards, we learned that he was undertaking to authorize the fitting and arming vessels in that port, enlisting men, foreigners and citizens, and giving them commissions to cruise and commit hostilities on nations at peace with us; that these vessels were taking and bringing prizes into our ports; that the consuls of France were assuming to hold courts of admiralty on them, to try, condemn, and authorize their sale as legal prize, and all this before Mr. Genet had presented himself or his credentials to the President, before he was received by him, without his consent or consultation, and directly in contravention of the state of peace existing, and declared to exist in the President's proclamation, and incumbent on him to preserve till the constitutional authority should otherwise declare. These proceedings became immediately, as was naturally to be expected, the subject of complaint by the representative here of that power against whom they would chiefly operate. The British minister presented several memorials thereon, to which we gave the answer of May the 15th, heretofore enclosed to you, corresponding in substance with a letter of the same date written to Mr. Ternant, the minister of France then residing here, a copy of which I send herewith. On the next day Mr. Genet reached this place, about five or six weeks after he had arrived at Charleston, and might have been at Philadelphia, if he had steered for it directly. He was immediately presented to the President, and received by him as the minister of the republic; and as the conduct before stated seemed to bespeak a design of forcing us into the war without allowing us the exercise of any free will in the case, nothing could be more assuaging than his assurance to the President at his reception, which he repeated to me afterwards in conversation, and in public to the citizens of Philadelphia in answer to an address from them, that on account of our remote situation and other circumstances, France did not expect that we should become a party to the war, but wished to see us pursue our prosperity and happiness in peace. In a conversation a few days after, Mr. Genet told me that M. de Ternant had delivered him my letter of May the 15th. He spoke something of the case of the Grange, and then of the armament at Charleston, explained the circumstances which had led him to it before he had been received by the government and had consulted its will, expressed a hope that the President had not so absolutely decided against the measure but that he would hear what was to be said in support of it, that he would write me a letter on the subject, in which he thought he could justify it under our treaty; but that if the President should finally determine otherwise, he must submit; for that assuredly his instructions were to do what would be agreeable to us. He accordingly wrote the letter of May the 27th. The President took the case again into consideration, and found nothing in that letter which could shake the grounds of his former decision. My letter of June the 5th notifying this to him, his of June the 8th and 14th, mine of the 17th, and his again of the 22d, will show what further passed on this subject, and that he was far from retaining his disposition to acquiesce in the ultimate will of the President.

It would be tedious to pursue this and our subsequent correspondence through all their details. Referring, therefore, for these to the letters themselves, which shall accompany this, I will present a summary view only of all the points of difference which have arisen, and the grounds on which they rest.

1. Mr. Genet asserts his right of arming in our ports and of enlisting our citizens, and that we have no right to restrain him or punish them. Examining this question under the law of nations, founded on the general sense and usage of mankind, we have produced proofs, from the most enlightened and approved writers on the subject, that a neutral nation must, in all things relating to the war, observe an exact impartiality towards the parties, that favors to one to the prejudice of the other, would import a fraudulent neutrality, of which no nation would be the dupe; that no succor should be given to either, unless stipulated by treaty, in men, arms, or anything else directly serving for war; that the right of raising troops being one of the rights of sovereignty, and consequently appertaining exclusively to the nation itself, no foreign power or person can levy men within its territory without its consent; and he who does, may be rightfully and severely punished; that if the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments. To these principles of the law of nations Mr. Genet answers, by calling them "diplomatic subtleties," and "aphorisms of Vattel and others." But something more than this is necessary to disprove them; and till they are disproved, we hold it certain that the law of nations and the rules of neutrality forbid our permitting either party to arm in our ports.

But Mr. Genet says, that the twenty-second article of our treaty allows him expressly to arm in our ports. Why has he not quoted the very words of that article expressly allowing it? For that would have put an end to all further question. The words of the article are, "it shall not be lawful for any foreign privateers not belonging to subjects of the M. C. King, nor citizens of the said United States, who have commissions from any foreign Prince or State in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties." Translate this from the general terms in which it here stands, into the special case produced by the present war. "Privateers not belonging to France or the United States, and having commissions from the enemies of one of them," are, in the present state of things, "British, Dutch and Spanish privateers." Substituting these, then, for the equivalent terms, it will stand thus, "it shall not be lawful for British, Dutch or Spanish privateers to fit their ships in the ports of the United States." Is this an express permission to France to do it? Does the negative to the enemies of France, and silence as to France herself, imply an affirmative to France? Certainly not; it leaves the question as to France open, and free to be decided according to circumstances. And if the parties had meant an affirmative stipulation, they would have provided for it expressly; they would never have left so important a point to be inferred from mere silence or implications. Suppose they had desired to stipulate a refusal to their enemies, but nothing to themselves; what form of expression would they have used? Certainly the one they have used; an express stipulation as to their enemies, and silence as to themselves. And such an intention corresponds not only with the words, but with the circumstances of the times. It was of value to each party to exclude its enemies from arming in the ports of the other, and could in no case embarrass them. They therefore stipulated so far mutually. But each might be embarrassed by permitting the other to arm in its ports. They therefore would not stipulate to permit that. Let us go back to the state of things in France when this treaty was made, and we shall find several cases wherein France could not have permitted us to arm in her ports. Suppose a war between these States and Spain. We know, that by the treaties between France and Spain, the former could not permit the enemies of the latter to arm in her ports. It was honest in her, therefore, not to deceive us by such a stipulation. Suppose a war between these States and Great Britain. By the treaties between France and Great Britain, in force at the signature of ours, we could not have been permitted to arm in the ports of France. She could not then have meant in this article to give us such a right. She has manifested the same sense of it in her subsequent treaty with England, made eight years after the date of ours, stipulating in the sixteenth article of it, as in our twenty-second, that foreign privateers, not being subjects of either crown, should not arm against either in the ports of the other. If this had amounted to an affirmative stipulation that the subjects of the other crown might arm in her ports against us, it would have been in direct contradiction to her twenty-second article with us. So that to give to these negative stipulations an affirmative effect, is to render them inconsistent with each other, and with good faith; to give them only their negative and natural effect, is to reconcile them to one another and to good faith, and is clearly to adopt the sense in which France herself has expounded them. We may justly conclude, then, that the article only obliges us to refuse this right, in the present case, to Great Britain and the other enemies of France. It does not go on to give it to France, either expressly or by implication. We may then refuse it. And since we are bound by treaty to refuse it to the one party, and are free to refuse it to that other, we are bound by the laws of neutrality to refuse it to the other. The aiding either party then with vessels, arms or men, being unlawful by the law of nations, and not rendered lawful by the treaty, it is made a question whether our citizens, joining in these unlawful enterprises, may be punished?

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 citizen. 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 apprised 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 letters 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 sovereign 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 they 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 chose 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 recognized 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 recognized 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 sub judice, 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 nowise 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 22d 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 rencounter 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 re-landed, 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 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 meanwhile, 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 it 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 burning 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 meantime, 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 12th, 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 to 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 22d, 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.