25 Oct. 1804
The Offences enumerated in the first Section of the proposed Law are Treason, felony, misdemeanor, breach of the peace and breach of the Revenue Laws.
Treason cannot be Committed but by a person owing allegience to the U. States and therefore the Commanding Officer of a foreign armed vessel cannot be guilty of it. but a criminal may take refuge on shipboard, and even a foreign officer owes allegiance [elsewhere]. piracy, murder, or other felony committed on the high sea is ‘committed within the jurtn of the US,’ and the offender may be on board a vessel in a harbor of the US. see Laws of Congs. 1. 101 &c
A felony cognisable in the Courts of the U. States cannot be Committed but upon the high Seas or in a fort or other place under the sole and exclusive jurisdiction of the U. States. And therefore it cannot be Committed on board of a foreign Ship within any of our Harbours. but a felon may take refuge
Misdemeanors and breaches of the peace committed within any of our harbours are cognisable only in the State Courts. the 3d. section creates misdemeanors
Breaches of the Revenue Laws are offences which Congress are competent to restrain & punish.
Does not the proposed first Section commit too much power to the discretion of the Officer charged with the process of law? Ought not the President of the U. States in each and every case maturely and deliberately to consider and determine whether it would be expedient to resort to such strong coercive measures? No armed publick Ship would allow her Commanding Officer to be seized and taken by force from on board his Ship. Resistance would be made. And the foreign Ship would not submit but to superior force and that she would not do but by striking her Colours in the accustomed form of a vanquished Vessel. In case of the death of any of our people the Officers and all the men of the foreign Ship would by the provision of this first Section be guilty of murder and be punishable accordingly.
We should be relieved from great embarressments if the President of the U.S. possessed in substance the powers contemplated in the Second Section. We should however keep it in view that if the ports of the Mediterranean were shut against our publick armed vessels, we would be utterly unable to prosecute our Warfare against Tripoli or any other Barbary power.
It would be impossible to restrain our own people from all intercourse with such foreign Ships or from furnishing them with such supplies and aids as they might want.
The refusing of the right of entry would be no doubt a serious injury to the foreign merchants; but at the same time it might be as great an injury to our own Citizens inasmuch as they may and probably would be the owners of the Cargo on board. Besides, would not the resorting to such expedients be somewhat humiliating as it would be permitting a foreigner to remain in our own Country and in the view of our own people openly and insultingly putting at defiance the authority of our Laws and the orders of our government. Would it not be more grateful to the American people and more honorable to their government to enforce the order to depart by means of our fortifications and our marine force. The employment of such means is not an uncommon thing and could easily be justified
The Offences stated in this Section under the general terms—Trespass—Spoliations—Vexation—ought to be described with more precision.
DLC: Papers of Thomas Jefferson.