To Edmond Charles Genet
Philadelphia July 24. 1793.
Your favor of the 9th. instant covering1 the information of Silvat Ducamp, Pierre Nouvel, Chouquet de Savarence, Gaston de Nogeré and G. Beustier, 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 merchandize of their property, these vessels were stopped by British armed vessels and their property taken out as lawful prize.
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 abovementioned, 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 inconveniencies 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, controuling in special cases the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to controul 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 Prussia: 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 & 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 the 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 few 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 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 tho’ found in our vessels; and consequently from circumstances over which we have no controul.
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 and esteem, Sir Your most obedient & most humble Servant.
PrC (DLC); in a clerk’s hand, unsigned; at foot of first page: “The Minister Pleny. of the Republic of France.” PrC of Tr (DLC); in a clerk’s hand, with a correction by TJ (see note 1 below); at foot of text: “(Copy).” Tr (NNC: Gouverneur Morris Papers). Tr (DNA: RG 46, Senate Records, 3d Cong., 1st sess.). PrC (PRO: FO 97/1). FC (Lb in DNA: RG 59, DL). Tr (AMAE: CPEU, xxxviii); in French. Printed in Message description begins A Message of the President of the United States to Congress Relative to France and Great-Britain. Delivered December 5, 1793. With the Papers therein Referred to. To Which Are Added the French Originals. Published by Order of the House of Representatives, Philadelphia, 1793 description ends , 55–6; printed in Correspondence description begins [Edmond Charles Genet], The Correspondence between Citizen Genet, Minister of the French Republic, to the United States of North America, and the Officers of the Federal Government; to which are Prefixed the Instructions from the Constituted Authorities of France to the Said Minister. All from Authentic Documents, Philadelphia, 1793 description ends , 25–6, and in French in Correspondance description begins [Edmond Charles Genet], Correspondance entre le Citoyen Genet, Ministre Plenipotentiaire de la Republique Française pres les Etats-Unis, et les Membres du Gouvernement Féderal, Precedee des Instructions données à ce Ministre par les Autorités constituées de la France, Philadelphia, 1794 description ends , 30–1, without first paragraph. Enclosed in TJ to Gouverneur Morris, 16 Aug. 1793; draft enclosed in TJ to Edmund Randolph, with Jefferson’s Note, [23 July 1793], and Randolph to TJ, 25 July 1793.
On the previous day TJ had submitted a draft of this letter to a meeting of the President and the Cabinet. For their approval, see Washington, Journal description begins Dorothy Twohig, ed., The Journal of the Proceedings of the President, 1793–1797, Charlottesville, 1981 description ends , 206; Notes of Cabinet Meeting on Edmond Charles Genet, 23 July 1793; TJ to Randolph, with Jefferson’s Note, [23 July 1793]; and Randolph to TJ, [ca. 24], 25 July 1793.
Her treaty with France: see Article 20 of the 1786 commercial treaty between France and Great Britain (Clive Parry, ed., The Consolidated Treaty Series, 231 vols. [Dobbs Ferry, N.Y., 1969–81], L, 83). For the relevant articles of our treaties with France, the United Netherlands, and Prussia, see Miller, Treaties description begins Hunter Miller, ed., Treaties and other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , ii, 20–1, 68–70, 170–1.
It was possibly in connection with this letter, or his letter of 16 Aug. 1793 to Gouverneur Morris, that TJ compiled brief notes on European treaties on the subjects of “Contraband,” “free <bottoms> ships make free goods,” and “enemy bottoms make enemy goods” (MS in MHi; entirely in TJ’s hand; undated; bearing on verso TJ’s undated notes on John Carey, ed., The System of Short-hand, practised by Mr. Thomas Lloyd, in taking down the Debates of Congress … [Philadelphia, 1793]; see Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, Washington, D.C., 1952–59, 5 vols. description ends No. 1133).
1. Word altered in ink by TJ to “covered” in PrC of Tr. Tr in DNA and Message: “covered.”