Kitabı oku: «Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 3», sayfa 27
The President charges you to communicate the contents of this letter to the court of Madrid, with all the temperance and delicacy which the dignity and character of that court render proper; but with all the firmness and self-respect which befit a nation conscious of its rectitude, and settled in its purpose.
I have the honor to be, with sentiments of the most perfect esteem and respect, Gentlemen, your most obedient and most humble servant,
Th: Jefferson.
LETTER CLX.—TO THE SUPREME COURT OF THE UNITED STATES, July 18,1793
To the Chief Justice and Judges of the Supreme Court of the United States.
Philadelphia, July 18,1793.
Gentlemen,
The war which has taken place among the powers of Europe, produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, and of greater importance to the peace of the United States. These questions depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land; and are often presented under circumstances which do not give a cognizance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the executive, as to occasion much embarrassment and difficulty to them. The President would, therefore, be much relieved, if he found himself free to refer questions of this description to the opinions of the judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority insure the respect of all parties. He has therefore asked the attendance of such judges as could be collected in time for the occasion, to know, in the first place, their opinions, whether the public may with propriety be availed of their advice on these questions. And if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on.
I have the honor to be, with sentiments of great esteem and respect, Gentlemen, your most obedient, humble servant,
Th: Jefferson.
LETTER CLXI.—TO MR. GENET, July 24,1793
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 Nogère, 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 citzens 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 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 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, their 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,
Th: Jefferson.
LETTER CLXII.—TO MR. GENET, August 7, 1793
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,
Th: Jefferson.
LETTER CLXIII.—TO GOUVERNEUR MORRIS, August 16,1793
TO GOUVERNEUR 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 principles 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 develope 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 ascribe 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 22nd 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 22nd, 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 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 any thing 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 the other, we are bound by the laws of neutrality to refuse it to that 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 citizens. But this is not true either on the general principles of society, or by our constitution, which gives that power to Congress alone, and not to the citizens individually. Then the first position was not true; and no citizen has a right to go to war of his own authority, and for what he does without right, he ought to be punished. Indeed, nothing can be more obviously absurd than to say, that all the citizens may be at war, and yet the nation at peace.
It has been pretended, indeed, that the engagement of a citizen in an enterprise of this nature, was a divestment of the character of citizen, and a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character by emigration and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do. But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the character of citizen, and withdraws the criminal from their coercion. They would never prescribe an illegal act among the legal modes by, which a citizen might disfranchise himself; nor render treason, for instance, innocent by giving it the force of a dissolution of the obligation of the criminal to his country. Accordingly, in the case of Henfeild, a citizen of these States, charged with having engaged in the port of Charleston, in an enterprise against nations at peace with us, and with having joined in the actual commission of hostilities, the Attorney General of the United States, in an official opinion, declared, that the act with which he was charged was punishable by law. The same thing has been unanimously declared by two of the Circuit Courts of the United States, as you will see in the charges of Chief Justice Jay, delivered at Richmond, and Judge Wilson, delivered at Philadelphia, both of which are herewith sent. Yet Mr. Genet, in the moment he lands at Charleston, is able to tell the Governor, and continues to affirm in his correspondence here, that no law of the United States authorizes their government to restrain either its own citizens or the foreigners inhabiting its territory, from warring against the enemies of France. It is true, indeed, that in the case of Henfeild, the jury which tried, absolved him. But it appeared on the trial, that the crime was not knowingly and wilfully committed; that Henfeild was ignorant of the unlawfulness of his undertaking; that in the moment he was apprized of it, he showed real contrition; that he had rendered meritorious services during the late war, and declared he would live and die an American. The jury, therefore, in absolving him, did no more than the constitutional authority might have done, had they found him guilty: the constitution having provided for the pardon of offences in certain cases, and there being no case where it would have been more proper than where no offence was contemplated. Henfeild, therefore, was still an American citizen, and Mr. Genet’s reclamation of him was as unauthorized as the first enlistment of him.
2. Another doctrine advanced by Mr. Genet is, that our courts can take no cognizance of questions whether vessels, held by theirs, as prizes, are lawful prizes or not; that this jurisdiction belongs exclusively to their consulates here, which have been lately erected by the National Assembly into complete courts of admiralty. Let us consider, first, what is the extent of jurisdiction which the consulates of France may rightfully exercise here. Every nation has of natural right, entirely and exclusively, all the jurisdiction which may be rightfully exercised in the territory it occupies. If it cedes any portion of that jurisdiction to judges appointed by another nation, the limits of their power must depend on the instrument of cession. The United States and France have, by their consular convention, given mutually to their Consuls jurisdiction in certain cases especially enumerated. But that convention gives to neither the power of establishing complete courts of admiralty within the territory of the other, nor even of deciding the particular question of prize, or not prize. The consulates of France, then, cannot take judicial cognizance of those questions here. Of this opinion Mr. Genet was, when he wrote his letter of May the 27th, wherein he promises to correct the error of the Consul at Charleston, of whom, in my letter of the 15th instant, I had complained, as arrogating to himself that jurisdiction; though in his subsequent letters he has thought proper to embark in the errors of his Consuls.
But the United States, at the same time, do not pretend any right to try the validity of captures made on the high seas, by France, or any other nation, over its enemies. These questions belong of common usage to the sovereignty of the captor, and whenever it is necessary to determine them, resort must be had to his courts. This is the case provided for in the seventeenth article of the treaty, which says, that such prizes shall not be arrested, nor cognizance taken of the validity thereof; a stipulation much insisted on by Mr. Genet and the Consuls, and which we never thought of infringing or questioning. As the validity of captures then, made on the high seas by France over its enemies, cannot be tried within the United States by their Consuls, so neither can it by our own courts. Nor is this the question between us, though we have been misled into it.
