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

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.