Opinion on the Restoration of Prizes, 16 May 1793
Opinion on the Restoration of Prizes
The facts suggested, or to be taken for granted, because the contrary is not known, in the case now to be considered, are, that a vessel was purchased at Charleston and fitted out as a privateer by French citizens, manned with foreigners chiefly, but partly with citizens of the US. the command given to a French citizen by a regular commission from his government, that she has made prize of an English vessel in the open sea, and sent her in to Philadelphia. The British minister demands restitution, and the question is Whether the Executive of the US. shall undertake to make it?
This transaction may be considered 1. as an offence against the US. 2. as an injury to Great Britain.
In the 1st. view it is not now to be taken up, the opinion being that it has been an act of disrespect to the jurisdiction of the US. of which proper notice is to be taken at a proper time.
Under the 2d. point of view, it appears to me wrong on the part of the US. (where not constrained by treaties) to permit one party in the present war to do what cannot be permitted to the other. We cannot permit the enemies of France to fit out privateers in our ports, by the 22d. article of our treaty. We ought not therefore to permit France to do it, the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair and secure neutrality.1 Yet considering that the present is the first case which has arisen, that it has been in the first moment of the war, in one of the most distant ports of the US. and before measures could be taken by the government to meet all the cases which may flow from the infant state of our government and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the government. In this last light it cannot be taken, because the act from which it results placed the US. with the offended, and not the offending party. Her minister has seen himself that there could have been on our part neither permission nor connivance. A very moderate apology then from the US. ought to satisfy Great Britain. The one we have made already is ample, to wit, a pointed disapprobation of the transaction, a promise to prosecute and punish according to law such of our citizens as have been concerned in it, and to take effectual measures against a repetition. To demand more, would be a wrong in Gr. Britain: for to demand satisfaction beyond what is adequate, is a wrong. But it is proposed further to take the prize from the captors and restore her to the English. This is a very serious proposition.
The dilemma proposed in our conferences, appears to me unanswerable. Either the commission to the commander of the privateer was good, or not good. If not good, then the tribunals of the country will take cognisance of the transaction, recieve the demand of the former owner, and make restitution of the capture: and there being, on this supposition, a regular remedy at law, it would be irregular for the government to interpose.—If the commission be good, then the capture having been made on the high seas, under a valid commission from a power at war with Gr. Britain, the British owner has lost all his right, and the prize would be deemed good even in his own courts, were the question to be brought before his own courts. He has now no more claim on the vessel than any stranger would have who never owned her, his whole right being transferred by the laws of war to the captor.
The legal right then being in the captor, on what ground can we take it from him? Not on that of right, for the right has been transferred to him. It can only be by an act of force, that is to say, of reprisal for the offence committed against us in the port of Charleston. But the making reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction2 ought to precede; and when reprisal follows, it is considered as an act of war, and never yet failed to produce it in the case of a nation able to make war.—Besides, if the case were important enough to require reprisal, and ripe for that step, Congress must be called on to take it; the right of reprisal being expressly lodged with them by the constitution, and not with the executive.
I therefore think that the satisfaction already made to the government of Great Britain is quite equal to what ought to be desired in the present case: that the property of the British owner is transferred by the laws of war to the captor; that for us to take it from the captor would be an act of force or reprisal which the circumstances of the case do not justify, and to which the powers of the Executive are not competent by the constitution.
Th: Jefferson
May. 16. 1793.
MS (DLC: Washington Papers); entirely in TJ’s hand; endorsed by Bartholomew Dandridge, Jr. PrC (DLC); partially overwritten in a later hand. Tr (Lb in DNA: RG 59, SDC); at head of text: “The heads of Departments & the Attorney General of the US. having been called upon by the President of the US. to give their opinions on the subject of the Government of the US. interfering, to cause restoration to be made of certain vessels taken as prizes by a French privateer, fitted out at Charleston, & brought into the Port of Philadelphia, The Secretary of State gave the following opinion.” Entry in SJPL: “Opn on an English prize taken by French privateer & brot here.”
This opinion stemmed from the inability of the Cabinet to agree on a neutrality issue raised in one of the series of memorials George Hammond had written to TJ on 8 May 1793—whether the United States government was obliged to restore to their original owners British merchant ships captured and brought into American ports by the French privateers commissioned by Edmond Charles Genet at Charleston. Pursuant to the President’s direction, the Cabinet met without him and considered this question on 15 May 1793. During this meeting the Cabinet divided equally, with TJ and the Attorney General opposed to the restoration of these prizes and the Secretaries of Treasury and of War in favor of it. Unable to present the President with a unanimous opinion on this question, the Cabinet members agreed to submit separate written opinions. TJ submitted his opinion against restoration to the President this day, and the Attorney General wrote a concurring opinion on the following day. The Secretary of the Treasury and the Secretary of War also transmitted their opinions in favor of restoration to the President this day, arguing that since Genet’s commissions clearly violated American neutrality, restoring the prizes was necessary to preserve that neutrality and avoid giving Great Britain a casus belli against the United States (Alexander Hamilton to Washington, 15 May 1793, , xiv, 454–60; Henry Knox to Washington, 16 May 1793, DLC: Washington Papers; Edmund Randolph to Washington, 17 May 1793, same; , 141).
The President then attempted, through the Attorney General, to probe mercantile opinion in Philadelphia on this issue before coming to a decision. Randolph advised Washington that the majority of the people clearly opposed restitution, but despite one report that ninety percent of the merchants were in agreement, he insisted that most of them necessarily supported restitution because “the existence of our poor mercantile capitals is so interwoven with those of Great Britain, that the pleasure of the British merchants must always be a rule of action to ours.” He also informed Washington that on 17 May he had urged the Secretary of State, as they were leaving the President’s house, “to discover from Mr. Genest his temper upon this subject, and his participation in the affair of the commission. He expressed his hope, that something might result from a communication with him, which might lessen the present embarrassment. Perhaps an intimation to Mr. J. might induce him to be more earnest in this pursuit” (Randolph to Washington, 18 May 1793, “private,” DLC: Washington Papers). What ensued from the Attorney General’s suggestion is not known, but by 21 May the President had resolved the conflict of opinion in the Cabinet in favor of TJ and Randolph, although the Secretary of State waited another two weeks before officially informing the British minister that the federal government would not restore the prizes taken by the privateers Genet had commissioned in Charleston (TJ to William Vans Murray, 21 May 1793; Hammond to TJ, 31 May 1793; TJ to Hammond, 5 June 1793; Hammond to Lord Grenville, 10 June 1793, PRO: FO 5/1; , 159). For the related issue of whether the privateer and its prizes should be expelled from American ports, see Notes on the Citoyen Genet and Its Prizes, 20 May 1793.
The editorial caption for this opinion in vi, 257, has misled some scholars into believing that the English prize in question was the Little Sarah (see , 191; , iii 100). In fact, the two ships under consideration in the present opinion were the privateer Citoyen Genet, which had been commissioned by Edmond Charles Genet and outfitted at Charleston, and the William, a British prize it had captured on the high seas on 3 May 1793 and sent to Philadelphia. The William arrived on 12 May, and the Citoyen Genet and its second prize, the Active, captured on 9 May 1793, reached Philadelphia two days later (Hammond, “List of British Ships captured on the coast of America,” n.d., enclosed in Hammond to Lord Grenville, 17 May 1793, PRO: FO 5/1; “Statement of British vessels captured and brought as prizes into the … ports of the United States,” n.d., enclosed in Hammond to Grenville, 5 Nov. 1794, , 610; National Gazette, 15 May 1793; General Advertiser, 15 May 1793; Woodfin, “Citizen Genet,” 603–4; TJ to William Rawle, 15 May 1793, and note; and Hammond to TJ, 5 June 1793). For the case of the Little Sarah, see Memorial from Benjamin Holland and Peter Mackie, 24 May 1793; Edmund Randolph to TJ, 26 May 1793; and Cabinet Opinions on the Little Sarah, 8 July 1793, and note.
The United States government’s Moderate Apology was contained in TJ to Hammond, 15 May 1793.
1. TJ first wrote “a fair neutrality” and then altered it to read as above.
2. Preceding four words interlined.