From Robert Smith
Washington Aug. 7. 1801.
The chief Clerk of the department of State having this morning shewn to me a Letter from mr Thorton requesting the Executive to order the departure of the English Ship that has been brought into the port of Boston by certain French Citizens, I consider it proper to communicate to you my Opinion thereon. My numerous and pressing engagements will not allow me to go into an extensive discussion of the question.
Before the making of the Treaty with Great Brittain Citizens of France having made a prize, had a right to demand and we were obliged to give Shelter and refuge to them in our ports. This right they had under an existing Treaty, and it was known to the Brittish Government at the time of the making of their Treaty with us. The exception in the Brittish treaty stipulating that “nothing therein contained shall operate contrary to former and existing Treaties” must necessarily have reference to this privilege enjoyed by the French under a former Treaty then existing and it is the same in effect as if this privilege of the French had been expressly specified in the exception. After the Brittish treaty was concluded the French, as before, continued to enjoy this privilege. They enjoyed it as a Right. We were under an Obligation to allow it. And the Brittish had no ground of complaint against us for allowing it.
No change has been made in this State of things but by the Act of Congress which declared that the Treaty with France should not thenceforth be Obligatory on the Government or the Citizens of the United States. Under this Act France lost certain rights and the United States were relieved from certain Obligations. But it left all other Nations precisely where they had previously been. It did not give to Great Brittain any additional rights. It did not lay us under any additional obligations to her. Whence then does the Brittish Government deduce the right to exhibit this claim or our Obligation to allow it? Will it be urged that under the words “former and existing treaties” such a contingent right did accrue as soon as the French Treaty ceased to exist? Such a construction is not warranted by the prevailing rules of interpretation. On the Contrary, those rules declare that if such had been the intention or view of the Brittish Goverment, they ought to have provided for so important a contingent benefit by precise language, and especially as the idea could have been conveyed without the possibility of a doubt by the introduction of a few words of explanation. Not having disclosed such an intention, they cannot now insist upon so forced a construction.
There is an essential difference between the allowing French Citizens to do what may and what may not be done consistently with our Neutral Character. The Act complained of in this instance can be justified on our part upon principles of Neutrality and therefore may be allowed. But if it were forbidden by the Laws of Neutrality, although it had been allowed by our late Treaty with France we could not give it our sanction.
You will be pleased to consider these as mere hints that have suggested themselves upon the first view of the subject. I have not time to examine or digest them so as to satisfy myself. Accept assurances of my great respect and high consideration
RC (DLC); at foot of text: “The President”; endorsed by TJ as received from the Navy Department on 13 Aug. concerning “French prizes” and so recorded in SJL.
Shewn to me a letter: Jacob Wagner apparently showed Smith a letter to Madison of 1 Aug. from British chargé Edward Thornton. It followed up on a communication of 23 July, in which Thornton, who was in Philadelphia, said that he had learned from the newspapers that an English vessel from the West Indies had entered “one of the Eastern ports” after being seized by the French prisoners it was carrying. Saying that the ship was in effect a French prize, Thornton on the 23d asked the U.S. government “to order the immediate departure of the vessel from the port in which she has taken refuge.” Wagner forwarded that letter to Madison on 3 Aug., and Madison passed it along to TJ at Monticello (see TJ to Madison, 13 Aug.). In his letter of 1 Aug., which Wagner forwarded to Madison on the 10th, Thornton repeated his request that the ship be sent away, and he enclosed copies of documents he had received about the affair. The vessel was the snow Windsor, which had been carrying French, Swedish, and Danish prisoners of war. They had taken the ship to Boston after gaining control of it during a storm at sea (Madison, Papers, Sec. of State Ser. description begins J. C. A. Stagg, ed., The Papers of James Madison, Secretary of State Series, Charlottesville, 1986–, 8 vols. description ends , 1:270, 463; 2:5, 12–13, 30–1).
In his opinion on the Betsy Cathcart case printed at 3 July above, Levi Lincoln also discussed Article 17 of the 1778 Treaty of Amity and Commerce, which enabled French warships and privateers to find shelter and refuge for their prizes in American ports, and Article 25 of the Jay Treaty, which granted a similar privilege to Great Britain but was not to operate contrary to existing treaties with other nations.
The act of congress that “freed and exonerated” the United States from its treaties with France was approved 7 July 1798 (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:578).