Editorial Note

As an avowed neutral country, the United States had treaty obligations and friendly intentions in foreign commerce that collided during JM’s first year as secretary of state. Even in July, after he and the president left Washington for their summer routine in Virginia, British complaints forced the two men to elaborate on American policy toward belligerents in eastern ports. The issue was complicated by the practice of privateering, which made any clear distinction between public and private vessels—men-of-war and merchantmen—difficult to draw. Furthermore, both Britain and France endeavored to use their treaties with the United States to gain naval superiority in the Atlantic.

Precedents in this business had been established by Jefferson as secretary of state in 1793, when conflict between the great powers was renewed. Jefferson then took a position of “fair and secure neutrality” within the framework of the 1778 Treaty of Amity and Commerce with France, where article 17 granted French warships, privateers, and their prizes exclusive and free use of American ports, and article 22 prohibited enemies of France from outfitting privateers in those harbors. Jefferson had then argued that the treaty with France did not prevent the United States from applying this last stricture against it as well: neither Britain nor France was to use American harbors as naval bases. Jefferson and President Washington also denied the authority of French consuls to adjudicate prize cases and forbade French ships—in effect any belligerents—from capturing prizes within American waters. The treaty obligation to admit French public ships to American ports, Jefferson wrote the British minister, did not exclude those of other powers from likewise making minor repairs, resupplying with nonmilitary necessities, or taking brief refuge in distress (Jefferson to Washington, 16 May 1793, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 6:257–58; see also Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:16–17, 19–20; Genet to Jefferson, 9 July 1793, Jefferson to George Hammond, 9 Sept. 1793, Hamilton to collectors of customs, 4 Aug. 1793, letters between Jefferson and foreign ministers, ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 1:140–41, 141–88, 163, 176; cabinet opinion on privateers and prizes, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 6:344–45, 370–71; U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:381–84).

Although by definition privateers were vessels carrying letters of marque and reprisal, Jefferson drew a fine distinction between active privateers and those belligerent vessels carrying such commissions but not, upon entering American waters, exhibiting evidence of warlike activity. Referring to the British ships Jane and Swallow—both armed and resting in American ports without prizes—Jefferson maintained that their character was peaceful, their purpose for the time being commercial only. A merchant vessel carrying a letter of marque and prepared for self-defense, he wrote the French government in mid–1793, was no more a privateer “than a husbandman following his plough, in time of war, with a knife or pistol in his pocket, is thereby made a soldier.” No treaty, he insisted, could be construed so as to ruin an ally’s valuable foreign trade. Armed merchantmen or “letters of marque” would be allowed to trade in American ports, but while there they could not strengthen their armaments (Jefferson to Gouverneur Morris, 16 Aug. 1793, ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 1:169; see also extract, French consul, New York, to Genet, 18 June 1793, and Genet to Jefferson, 9 July 1793, ibid., 1:159, 163; Treasury Department circular, 22 Aug. 1793 [DNA: RG 36, Boston and Charlestown, Mass., Letters Received from the Treasury, 1789–1899, vol. 4]).

Several events over the next eight years threatened to upset the “equal footing” Jefferson sought in 1793. First there was the Jay treaty, signed after Jefferson’s resignation from office. Article 24—closing American ports to the privateers of British enemies for the purposes of arming or outfitting themselves or selling their prizes—contained no contradiction of American neutral policy. Article 25, however, seemingly granted the British concessions that the United States in its French treaties had promised only to France and denied the French what the United States had furnished them earlier. Permitting only short-term, emergency refuge to “such as have made a Prize upon the Subjects or Citizens” of Britain, the article entitled British warships and privateers with their captives to enter and leave American ports freely. An artful clause noted that nothing in the treaty should be “construed or operate contrary to former and existing Public Treaties with other Sovereigns or States.” When in July 1798 Congress responded to naval hostilities with France by dissolving the 1778 agreements with that country, the issue remained murky because Britain then expected articles 24 and 25 of the Jay accord to enlist American officials in the struggle against French privateering (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:262; Treasury Department circular to the collectors of the customs, 30 June 1796 [DNA: RG 36, Boston and Charlestown, Mass., Letters Received from the Treasury, 1789–1899, vol. 4]; U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:578; Robert Smith to Jefferson, 7 Aug. 1801 [DLC: Jefferson Papers]).

Discussions between June and October 1801 gave the British chargé ample opportunity to test the new administration. On 4 June a Spanish armed merchantman, the Santa Escolastica, entered the Delaware River with a British prize in tow and quietly unloaded part of her cargo. Soon afterward Thornton reminded JM that articles 24 and 25 of the Jay treaty required her expulsion; by bringing in a prize, this vessel, belonging to an ally of France, had assumed the character of a privateer and did not therefore fall under the 1793 Jane and Swallow precedents. Thornton complained on 23 July that he had seen newspaper accounts of another prize case, this one truly unique, involving the British snow Windsor. Loaded with 122 French, Swedish, and Danish prisoners of war, the ship had been headed for home in June when the captives seized control during a storm and took her into Boston. Thornton saw no ambiguity. The Windsor had been captured largely by Frenchmen, and the United States, no longer bound by treaty with France to allow the ship into port, was obliged by article 25 of the British treaty to expel her. In notes of 24 July and 16 August, calling attention to two more cases, Thornton again urged JM to apply the Jay treaty. The French armed ship Beguine had violated American neutrality by strengthening her armament while berthed at Boston. A Spanish privateer reportedly had carried a British prize into Portland, Maine.

JM and the president tried to place their response to Thornton’s petitions on a plane above the Jay treaty, hoping to avoid favoritism toward Britain in the absence of a ratified agreement with France. The government ordered the captain of the Spanish privateer to send off his British prize immediately. Thornton protested that the Jay treaty required the departure of capturer as well; the Spanish minister argued that as a damaged vessel she was entitled to safe harbor under the Pinckney treaty. She was allowed to complete off-loading of her American-owned cargo and to make nonmilitary repairs. From the treasury office and the collector at Boston JM learned that the Beguine had not multiplied her guns or crew while visiting there, and Thornton was informed of those findings (JM to Thornton, 12 June and 12 July 1801; Yrujo to JM, 16 and 19 June 1801; George Latimer to Gallatin, 16 and 18 June 1801, and Yrujo to Latimer, 18 June 1801 [DNA: RG 59, NFL, Spain, vol. 2]; Gallatin to Latimer, 3 July 1801 [DNA: RG 59, ML]; Thornton to JM, 24 July 1801; Gallatin to JM, and enclosures, 20 Aug. 1801 [DNA: RG 59, ML]; Wagner to JM, 24 Aug. 1801 [DLC]; Jefferson to Gallatin, 14 Aug. 1801 [NHi: Gallatin Papers], and 28 Aug. 1801, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 8:85–87).

Jefferson at first hoped to postpone the Windsor case. Only after receiving Thornton’s 1 August letter supplying more information did the president recommend turning away the ship as a French prize—a British vessel captured “from within itself.” JM may not have disagreed with him, but having Jefferson’s permission to compose “any other answer you may think best,” the secretary of state, evidently with Gallatin’s collaboration, attempted once again to circumvent the Jay treaty while responding to the British complaint. Ordering the Windsor out of port, Gallatin wrote the Boston port collector that, “although treaties may have given to several nations a right to send in our ports their prizes, without their being detained seized or adjudicated, no right exists for them to remain beyond a reasonable time, if disagreeable to us; and that it is neither our duty nor our interest to grant to prizes made on our coast, & which can hardly be considered in any better light than indirect depredations on our commerce[,] any further indulgence than is strictly enjoined by the obligations of treaties & the law of nations or by the dictates of humanity.” In this statement there lay a clear message. The American government would not give sanctuary to belligerent ships that jeopardized its policy of neutrality toward the warring nations (Thornton to JM, 1 Aug. 1801 [DNA: RG 59, NFL, Great Britain, vol. 2]; Jefferson to JM, 13 Aug. 1801 [DLC: Rives Collection, Madison Papers], and 22 Aug. 1801 [DLC]; Jefferson to Gallatin, 28 Aug. 1801, Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 8:86–87; Gallatin to Benjamin Lincoln, 3 Sept. 1801 [NHi: Gallatin Papers]; Thornton to JM, 11 Nov. 1801 [DNA: RG 59, NFL, Great Britain, vol. 2]).