To Edmond Charles Genet
[ca. 16 July 1793]
Your letter of June 22. received during the absence of the President, could not be laid before him till his return, and then has been of necessity postponed to matters which pressed more in point of time. In point of importance nothing could more require attention than the doctrines laid down in the Protests of1 the Consuls of France at New York and Philadelphia, sanctioned by the cover of your letter, and which by setting up rival and independant authorities in every country, tend to destroy every where government at home and peace abroad. These Consuls assert that the limits of the Consular jurisdiction depend solely on the foreign government for which it acts, which may extend or restrain it at will: that the government of France has recently given to their foreign2 consulates jurisdiction of prizes at sea, and thus completely constituted them courts of admiralty: that no authority on earth has the right to interpose between the French nation and it’s enemies: (speaking of a case arising within our jurisdiction) that if a privateer of that nation commits a hostility within the jurisdiction of the US. neither the Executive nor Judiciary of the country has a right to punish the aggressors, nor make restitution to the injured party, but must appeal for that to the minister of the nation.
These principles are so diametrically opposite to what we conceive to be the common rights of nations, and to the particular laws of our own which the Executive are bound to see preserved, that it becomes it’s duty to declare in opposition to them,
That a3 nation has of natural right entire and exclusive jurisdiction over the territory it occupies: that if it cedes any portion of that jurisdiction to judges appointed by another nation, it’s limits depend on the instrument of cession: that the Consular Convention between France and the US. has given no power to either party to establish complete courts of admiralty within the territory of the other, nor to exercise jurisdiction therein in the particular questions of Prize or not Prize: that every nation on earth has a right to preserve peace, to punish acts in breach of it, and to restore property taken by force, within it’s own limits; that it is bound in duty to do this, and does not depend for it on an appeal to any other person or power: that every foreign vessel, armed or unarmed, private or public, entering our jurisdiction, enters it either as a friend or an enemy; if as an enemy indeed, their acts cannot be punished by the laws of the land (but our peace with all the world puts a hostile entrance out of the question). If as a friend, then they are entitled to the protection of those laws, bound at the same time to obey them, and amenable to them if they do not: (’dans les cas ou les citoyens respectifs auront commis quelque crime ou infraction de la tranquilité publique, ils seront justiciables des juges du païs’ is the language of the Consular convention between our two nations4 in affirmance of that of the rights of nations). Whether the cognisance thereof has been given to the Judiciary or the Executive organs, depends on the laws and constitution of the country. One of our subordinate5 tribunals has been of opinion it is not given to them. Another, perhaps may be of a contrary opinion. An appeal to the court of last resort will decide that finally. If the Judiciary has it not, the Executive, by it’s general commission to have the laws executed will be charged with the duty, solely and exclusively of all others. Till such final decision, by the court of last resort, complainants are free to appeal to either organ.
These are the principles which we hold claimable of right by every nation: they are those by which we are bound to govern ourselves, and in contradiction to which no person within our limits will be permitted to act: and if you will be so good as to admonish the Consuls of France accordingly it may prevent them from infringing laws to which the 2d. article of the Convention has made them expressly amenable.
While these Consular gentlemen treat in so high a tone the presumption of our tribunals for having merely considered Whether by the laws they ought to take cognisance of a question, the proceedings of the Executive have been equally unfortunate in your estimation. You are pleased to consider us as bringing forward diplomatic subleties, and the aphorisms of Vattel, to justify infractions of positive treaties. I shall agree with you that reason is the only rightful umpire between nation and nation. It’s dictates constitute the true law of nature and nations. These have been the subject of investigation with many writers, some of whom have succeeded in delineating them so much in unison with the general judgment of men, that their evidence is appealed to with very great respect. I need not repeat to you the names of Grotius, Puffendorf, Bynkershoeck, Wolf, Vattel and others. Nor shall I pretend that their conclusions are always incontrovertible. But they are so much respected as to put on those who deny them the burthen of demonstrating their error by a sounder logic. It is far from being evident that the happiness of mankind would be advanced by abandoning suddenly those rules of conduct which by a general consent they have sanctioned with the appellation of the Law of nations, and to which they profess a common acquiescence. Their umpirage must be bad indeed if not better than that of the sword: or, if they are only to be exchanged for others, where are those others to be found, and where the authority which shall establish them? The President, in deciding the cases which have arisen within our limits between your nation and it’s enemies, has respected those rules of nations to which all the parties have hitherto professed respect. In renouncing this test of reason and right you have doubtless been governed by a different one; and that those who act by different rules, should differ in their result is not wonderful. This will account for the obstacles which you complain of having experienced in some of the matters you have been pleased to propose here; and, with the inability of our treasury to pay monies not yet demandeable, will, I believe, make up the sum of those obstacles. We can assure you, Sir, with the purest truth, that none of them have arisen from unfavorable dispositions of our country towards yours. These are friendly and sincere, placing the happiness of your nation among the first of it’s wishes, and prompting to do for you whatever justice to others will admit, and our means enable us to do: and we should deem it a great calamity indeed were any circumstances to give our friends a different opinion. But we hope it to be impossible, and have so much confidence in their justice and the solidity of the principles by which we have been governed, as to trust they will see in their observance new motives of confidence and esteem.
You seem to be of opinion that the President has decided some cases which should have awaited the decision of Congress. When you shall have had time to become better acquainted with the constitution of the US. you will become sensible that this question can only arise between him and the legislature: that the Executive is the sole organ of our communications with foreign governments; that the Agents of those governments are not authorized to judge what cases are to be decided by this or that department; but to consider the declarations of the President conclusive as to them, and sufficient evidence that the proper department has pronounced on the case.
You have so often in your letters quoted the will of the citizens of the US. as something well known on these particular questions, and different from that of the President, that it is6 apprehended you may have been led into errors on that subject by individuals neither qualified to collect, nor authorized to pronounce it. You will more faithfully collect it from the same instrument, the constitution, wherein they have declared their will to be that the person whom they freely chuse as their President shall administer the Executive offices of their government as he shall think wisest and best in every particular case; that the persons whom they shall freely chuse as their legislature shall make the laws as they shall think wisest and best. In these they repose their confidence. Through these organs they express their will in every particular case, and not through individuals whom they have never seen, nor known, nor nominated for the declaration of their will, and who might use that respectable cover for purposes very distinct from the interests of those about whom they presume to misinform you.7
Dft (DLC: TJ Papers, 92: 15830–1, 15833); undated and unfinished, but composed ca. 16 July 1793; entirely in TJ’s hand, with “Not sent” written at head of text at a later date; at foot of first page: “Mr. Genet”; with additional paragraph written on separate sheet (same, 15832) on or after 23 July 1793 (see below); note penciled by Edmund Randolph on verso of fol. 15833, but actually intended for TJ to Genet, 24 July 1793: “In all respects [tenable and accurate.].” Recorded in SJPL under 22 July 1793: “Th:J. to Genet. draught of a lre not sent.” Enclosed in TJ to George Washington, 16 July 1793, and TJ to Edmund Randolph, with Jefferson’s Note, [23 July 1793].
The antecedents of this unsent letter are discussed in note to Genet to TJ, 22 June 1793. After pondering TJ’s draft on 23 July 1793, the Cabinet referred the matter to Attorney General Edmund Randolph for an opinion, which has not been found. In response to a suggestion made at the meeting by Henry Knox, TJ wrote on a separate sheet an additional paragraph admonishing the French minister for the offensive tone in which he spoke of the President in his letters (see note 7 below). The President and the Cabinet ultimately decided to make no reply to Genet, but instead to request his recall by the French government (Washington, Journal description begins Dorothy Twohig, ed., The Journal of the Proceedings of the President, 1793–1797, Charlottesville, 1981 description ends , 206; TJ to Randolph, with Jefferson’s Note, [23 July 1793]; Notes of Cabinet Meeting on Edmond Charles Genet, 23 July, 1, 2 Aug. 1793; Editorial Note and documents on the recall of Edmond Charles Genet, at 16 Aug. 1793).
The 1788 Consular convention between France and the United States is in Miller, Treaties, ii, 228–41. For the decision of One of our Subordinate Tribunals on American admiralty jurisdiction over belligerents, see note to George Hammond to TJ, 5 June 1793. For the result of an appeal in a different case to the Court of last resort the Supreme Court of the United States-concerning both American and French admiralty jurisdiction in the United States, see note to Lucas Gibbes and Alexander S. Glass to TJ, 8 July 1793. See also Thomas, Neutrality, 206–19.
1. Preceding four words interlined in place of “by.”
2. Word interlined.
3. Word interlined in place of “every.”
4. TJ first wrote “of our Consular convention” before revising it to read as above.
5. TJ here canceled “courts.”
6. TJ here canceled “fear.”
7. TJ wrote the following paragraph on a separate sheet after the Cabinet meeting of 23 July 1793 and later added “Not inserted” above it: “The terms in which you permit yourself, in this and some other of your letters, to speak of the President of the US. and the influence and impressions you venture to ascribe to him, are calculated to excite sentiments which need no explanation. On what grounds of truth they are hazarded, how to reconcile them to decorum, to the respect due to the person and character of our chief magistrate, and to the nation over which he presides and that too from the representative of a friendly people, are questions left to your maturer reflection.”