To Thomas Jefferson from James Madison, 18 August 1801
From James Madison
Aug: 18. 1801.
Dear Sir
Inclosed herewith are several letters & papers for perusal. Among the former you are troubled with another from Thornton. You will observe that the Declaration of the Master of the British vessel carried into Boston, states only that the Prisoners were French Spanish Danish &c &c. without saying whether they were taken in the French service, or that of their respective countries. This circumstance, and the distinction between a prize of such a description and one made by a Ship of war or privateer, or even a letter of Marque, seem to admit an easy reply to Thornton, in general terms that the case is not considered as within the purview of the Treaty, but will be attended to on the principles applicable to it. What these may require deserve both enquiry & consideration. The Books which I have & have looked into take no specific notice of such a capture. In whatever light it be regarded, it cannot, if out of the stipulation in the British treaty, fall within that of the French either antient or recent. We seem to be free therefore to permit the vessel to continue or to order her away as may be expedient, unless the law of nations prescribe one or the other course, or the instructions of 1793. impose one or the other, on our consistency. The law of nations, as far as I recollect, prescribes nothing more than an equality in the Neutral towards the beligerent nations. The instructions of 1793. have the same object, as far as antecedent Treaties would allow. The question results, whether the late order for the departure of the Spanish prize, be not sufficiently analogous to require a like one in the present case, even if it be ascertained that the prize was made by French Prisoners only. Should this be your determination, and it be deemed of importance to avoid the delay of a week, you can drop a line to the Secretary of the Treasury, directing him to give the proper order to the Collector at Boston; or in case the delay be not of importance, I can on receiving your determination transmit it to Mr. G. by the ensuing mail. you will find under cover to Mr. Wagner an answer to the Danish Resident, which if approved you will please to forward.
We cannot yet fix the time which is to give us the pleasure of seeing Monticello. We have been in expectation of a visit from some of our distant friends which has not yet been executed, and we are without information when it will be, or whether it has been laid aside. It is probable we shall know more on the subject in a few days, and we shall then decide, having regard to your hint as to the periods observed by the Governour in dividing his time between Richmond & Albemarle.
Always & Affecty. yours
James Madison
RC (DLC); endorsed by TJ as received from the State Department on 20 Aug. and so recorded in SJL. Enclosures: (1) Edward Thornton to Madison, Philadelphia, 1 Aug., regarding the British snow Windsor and enclosing the declaration of William Jones, master, dated 13 July, describing events which led to the capture of his vessel by prisoners of war on board, including “Blacks and Whites, of whom as I believe some were French, some Swedes, some Dutch, Some Danes, some Spaniards and one American”; also enclosing Thomas MacDonogh, British consul in Boston, to Massachusetts Governor Caleb Strong, 13 July, calling upon the governor to enforce immediately the Jay Treaty provisions regarding prizes taken by an enemy and brought into British or American ports; and also enclosing Strong to MacDonogh, 14 July, stating that he knew of “no law of the United States or request of the Executive of the General Government that could justify” his “interference in the case” (Lb in DNA: RG 59, NL; , 2:5). (2) Madison to Peder Blicher Olsen, 15 Aug., assuring the Danish diplomat, who arrived in Washington just after TJ had left for Monticello, that the president would be back at the seat of government about 1 Oct. and ready to receive the letters Blicher Olsen wanted to present from Christian VII (, 2:44). Other enclosures not found.
In 1793, TJ, Alexander Hamilton, and the other members of Washington’s cabinet framed a set of rules to stop infractions of American neutrality. In most respects the directives, which were issued in the form of instructions to customs collectors, placed all “belligerent parties” on an equal footing. In accordance with the 1778 Treaty of Amity and Commerce with France, however, an exception to the regulations blocked ships that captured French prizes from U.S. ports, and treaties then in effect with France, the Netherlands, and Prussia allowed warships in distress to enter American harbors (Alexander DeConde, Entangling Alliance: Politics & Diplomacy under George Washington [Durham, N.C., 1958], 223–4; , 15:178–81; , 1:269; Vol. 26:608–10).
Late Order for the Departure of the Spanish Prize: the armed Spanish vessel, Santa Escolastica, along with her British prize entered the Delaware River in late May and was permitted to land cargo at Philadelphia. Edward Thornton requested orders for the immediate exclusion of the vessel and its prize from American ports on the grounds that by the act of capturing an enemy vessel the ship had assumed the character of a privateer and was subject to the penalty of expulsion. TJ decided that the prize should not be able to continue within the United States. Thornton called for the departure of the Santa Escolastica as well, while the Spanish minister Carlos Martínez de Irujo claimed that the damaged vessel was eligible for safe harbor. The vessel was permitted to unload the American-owned cargo and to conduct nonmilitary repairs only (, 1:270, 271–2, 307, 328–9, 404–5).