To Vergennes, with State of the Case of the William & Catherine
Paris Nov. 14. 1785
I take the Liberty of troubling your Excellency on Behalf of six Citizens of the United States who have been for some Time confined in the Prisons of St. Pol de Léon, and of referring for particulars to the inclosed State of their Case. Some of the material Facts therein mentioned are founded on the Bill of Sale for the Vessel, her Clearance from Baltimore and her Logbook. The Originals of the two last and a Copy of the first are in my Hands. I have also Letters from a Merchant in Liverpool to Asquith which render it really probable that his Vessel was bound to Liverpool. The other Circumstances depend on their Affirmation, but I must say that in these Facts they have been uniform and steady. I have thus long avoided troubling your Excellency with this Case in Hopes it would recieve its Decision in the ordinary Course of Law; and I relied that that would indemnify the Sufferers if they had been used unjustly: but tho’ they have been in close Confinement now near three Months it has yet no Appearance of approaching to Decision. In the mean Time the Cold of the Winter is coming on, and to Men in their Situation may produce Events which would render all Indemnification too late. I must therefore pray the Assistance of your Excellency for the Liberation of their Persons, if the established Order of Things may possibly admit of it. As to their Property and their personal Sufferings hitherto, I have full Confidence that the Laws have provided for their Discussion some Tribunal where Justice will be done them. I inclose the Opinion of an Advocate forwarded to me by a Gentleman whom I had desired to obtain from some judicious Person of that Faculty a State of their Case. This may perhaps give a better Idea than I can of the Situation of their Cause. His Enquiries have led him to believe they are innocent Men, but that they must lose their Vessel under the Edict which forbids those under 30 Tons to approach the Coast. Admitting their Innocence as he does, I should suppose them not the Objects on whom such an Edict was meant to operate. The essential Papers which he says they redemanded from him and did not return, were sent to me at my Desire.
I have the honour to be with Sentiments of the most profound respect Your Excellency’s Most obedient and most humble Servant,
The Case of Lister Asquith Owner of the Schooner William & Catherine, Wm. McNeil Captain, Wm. Thompson, Wm. Neily, Robert Anderson Mariners and Wm. Fowler, Passenger.
Lister Asquith, a Citizen of the State of Maryland, having a Lawsuit depending in England which required his presence as involving in its Issue nearly his whole Fortune, determined to go thither in a small Schooner1 of his own that he might at the same Time take with him an Adventure of Tobacco and Flour, to Liverpool, where he had commercial Connections. This Schooner he had purchased as of 59 ¾ Tons as appears by his Bill of Sale, but she had been registered by her Owner2 at 21 Tons, in Order to evade the double Duties in England to which American Vessels are now subject. He cleared out from Baltimore for Liverpool the 11th. of June 1785 with eight Hogsheads of Tobacco and sixty Barrels of Flour.3 But run aground at Smith’s Point, sprung a leak and was obliged to return to Baltimore to refit. Having stopped his leak he took his Cargo on board again, and his Health being infirm he engaged Capt.* Wm. McNeil to go with him and on the 20th. of June, sailed for Norfolk in Virginia, and on the 22d. came to in Hampton Road at the Mouth of the River on which Norfolk is. Learning here that Tobacco would be better than Flour for the English Market, he landed fifty Barrels of his Flour and one Hhd. of tobacco which he found to be bad, meaning to take instead thereof nine Hogsheads of Tobacco more. But the same Night it began to blow very hard, with much Rain. The 23d. the Storm became more heavy, they let go both their Anchors but were driven notwithstanding from their Anchorage, forced to put to Sea, and to go before the Wind. The Occurrencies of their Voiage will be best detailed by short Extracts from their Logbook.5
Here the Logbook ends. At this time they had on board but ten Gallons of Water, five6 Pound of Bread, 2 or 3 ℔ of Candles, no Firewood, their Sails unfit to be trusted to any longer, and all their materials for mending them exhausted by the constant Repairs which the Violence of the Weather had called for. They therefore took a Pilot aboard who carried them into Pont du Val, but being informed by the Captain of a Vessel there, that the Schooner was too sharp built (as the American Vessels mostly are) to lie in that Port, he put out immediately and the next Morning the Pilot brought him to Anchor in the Road of the Isle de Bas. He went immediately to Roscoff, protested at the Admiralty the true State of the Case, and reported his Vessel and Cargo at the Custom house. In making the Report of his Vessel he stated her as of 21 Tons according to his Register.7 The Officer informed him that if she was no larger, she would be confiscated by an Edict which forbids all Vessels under 30 Tons to approach the Coast. He told the Officer what was the real Truth as to his Register and his Bill of Sale, and was permitted to report her according to the latter. He paid the usual Fees of 10 7s. and obtained a Clearance. Notwithstanding this he was soon visited by other Persons, whom he supposes to have been Commis of the Fermes, who seised his Vessel, carried her to the pier, and confined the Crew to their Vessel and half the pier, putting Centinels over them. They brought a Gauger who measured only her Hold and Part of her Steerage allowing nothing for the Cockpit, Cabbin, Forecastle, and above one half of the Steerage which is almost half of the Vessel, and thus made her Contents (if that had been of any Importance) much below the Truth. The Tobacco was weighed and found to be 6487* ℔, which was sent on the 18th. to Landivisiau, and on the 19th. they were committed to close Prison at St. Pol de Leon, where they have been confined ever since. They had when they first landed some Money, of which they were soon disembarrassed by different Persons who in various Forms undertook to serve them. Unable to speak or understand a Word of the Language of the Country, friendless and left without Money, they have languished three Months in a loathsome Jail, without any other Sustenance, a great Part of the Time, than what could be procured for three Sols a Day which have been furnished them to prevent their perishing. They have been made to understand that a criminal Process is going on against them under two heads, 1. as having sold Tobacco in contraband, and,2. as having entered a Port of France in a Vessel of less than 30 Tons Burthen. In support of the first Charge they understand that the Circumstance is relied on of their having been seen off the Coast by the Employés des Fermes one or two Days. They acknowlege they may have been so seen while beating off Pontduval till they could get a Pilot, while entering that Port, and again going round from thence to the Road of the Isle de Bas. The Reasons for this have been explained. They farther add that all the Time they were at Pontduval they had a King’s Officer on board, from whom as well as from their Pilot and the Captain by whose Advice they left that Port for the Isle de Bas, Information can be obtained by their Accusers (who are not imprisoned) of the true Motives for that Measure. It is said to be urged also that there was found in their Vessel some loose Tobacco in a Blanket, which excites a Suspicion that they had been selling Tobacco. When they were Stowing their loading they broke a Hogshead as is always necessary and is always done to fill up the Stowage and to consolidate and keep the whole Mass firm and in Place. The loose tobacco which had come out of the broken Hogshead they repacked in Bags: but in the Course of the Distress of their disastrous Voiage they had imployed these Bags, as they had done every Thing else of the same Nature, in mending their Sails. The Condition of their Sails when they came into Port will prove this and they were seen by Witnesses enough to whom their Accusers, being at their Liberty, can have Access. Besides, the Sale of a Part of their Tobacco is a Fact which had it taken Place might have been proved. But they deny that it has been proved or ever can be proved, by true Men, because it never existed. And they hope the Justice of this Country does not permit Strangers, seeking in their Ports an Asylum from Death, to be thrown into Jail, and continued there indefinitely, on the Possibility of a Fact, without any Proof. More especially when, as in the present Case, a demonstration to the Contrary, is furnished by their Clearance, which shews they never had more than 8 hhds. of tobacco on board, of which one had been put ashore at Hampton in Virginia as has been before related, and the Seven others remained when they first entered Port. If they had been Smugglers of Tobacco, the opposite Coast offered a much fairer Field, because the Gain there is as great; because they understand the Language and Laws of the Country, they know its Harbours and Coasts, and have Connections in them. These Circumstances are so important to Smugglers that they do not expect an Instance has ever occurred of the contraband of Tobacco attempted on this Side the Channel by a Crew wholly American. Be this as it may, they are not of that Description of Men.
As to the second Charge that they have entered a Port of France in a Vessel of less than 30 Tons Burthen, they in the first Place observe that they saw the Guager measure the Vessel and affirm that his Method of measuring could render little more than half her true Contents: but they say further, that were she below the Size of 30 Tons, and, when entering the Port, had they known of the Alternative of either forfieting their Vessel and Cargo or of perishing at Sea, they must still have entered the Port: the Loss of their Vessel and Cargo being the lesser Evil. But the Character of the Lawgiver assures them that the Intention of his Laws are perverted when misapplied to Persons, who under their Circumstances, take Refuge in his Ports. They have no Occasion to recur from his Clemency to his Justice by claiming the Benefit of that Article in the Treaty which binds the two Nations together, and which assures to the Fugitives of either from the Dangers of the Sea, a hospitable Reception and necessary Aids in the Ports of the other,8 and that without measuring the Size of their Vessel.
Upon the whole they protest themselves to have been as innocent as they have been unfortunate. Instead of Relief in a friendly Port they have seen their Misfortunes aggravated by the Conduct of Officers who in their Greediness for Gain can see in no Circumstance any Thing but Proofs of Guilt. They have already long suffered, and are still suffering, whatever scanty sustenance, an inclement Season, and close Confinement can offer most distressing to Men who have been used to neither, and who have Wives and Children at Home participating of their Distresses: they are utterly ignorant of the Laws and Language of the Country where they are suffering; they are deprived of that Property which would have enabled them to procure Counsel to place their Injuries in a true Light; they are distant from the Stations of those who are appointed by their Country to patronize their Rights; they are not at Liberty to go to them nor able to have Communication thro’ any other than the incertain Medium of the Posts; and they see themselves already ruined by the Losses and Delays they have been made to incur, and by the failure of the original Object of their Voiage. They throw themselves therefore on the Patronage of the Government and pray that its Energy may be interposed in Aid of their Poverty and Ignorance, to restore them to their Liberty and to extend to them that Retribution which the Laws of every Country mean to extend to those who Suffer injustly.
RC (Arch. Aff. Etr., Corr. Pol., E.U., xxx); in Short’s hand, signed by TJ; at head of text: “M D[e] R[ayneval].” PrC (DLC: TJ Papers, 16: 2728–30); in Short’s hand, except for place, date, and caption in TJ’s hand; lacks complimentary close and signature. Tr (Arch. Aff. Etr., Corr. Pol., E.-U., xxx); in French; endorsement shows that this translation and state of the case were sent to Calonne, 9 Dec. 1785. Tr (DNA: PCC, No. 87, i; also in No. 107, i). Enclosures: (1) Copy of Borgnis Desbordes, Frères to TJ, 4 Nov. 1785. (2) State of the case of the William & Catherine: MS (Arch. Aff. Etr., Corr. Pol., E.-U., xxx); in Short’s hand; undated; endorsed at head of text: “Joint à la lettre de Mr. Jefferson du 14. 9bre. 1785.” Tr (DNA: PCC, No. 87, i; also in No. 107, i). In DLC: TJ Papers, 16: 2731–41 there are nine leaves making up a full text consisting of (1) PrC of first four pages of Tr in DNA: PCC, No. 87; (2) one leaf in Short’s hand (not a PrC) whose recto and verso bridge the gap in text between the foregoing and the following, and (3) PrC of last six pages of MS in Arch. Etr. Aff. TJ sent a copy of the state of the case to Asquith on 23 Nov. 1785, and he also sent a copy of the present letter and the state of the case to Jay, 8 July 1786. Entry in SJL reads: “Vergennes. Asquith’s case.”
In DLC: TJ Papers, 17: 2909 there is an undated outline of the case in TJ’s hand. In preparing this outline, TJ drew on the letters of Asquith, Desbordes, Gillard and Floch, and Mehegan. Some of the variations between the outline and the state of the case are indicated in the notes below. TJ checked off each item of the outline as he covered it in the state, but there were some not so checked. Among the latter were statements drawn from the letter of Desbordes of 4 Nov. 1785 and from the letter of Gillard and Floch quoted therein. Under the heading “Objections and Answers” in the outline were some points that TJ evidently did not think it necessary to include in the state of the case:
“Obj. Steelyards on board. Ans. It was a bay vessel which always carry steelyards. These with her when bought‥‥ Obj. Shells on the ballast stones. Ans. Shells in America as well as France. Obj. The fish in these shells were alive. Ans. The vessel had made a great deal of water the whole way. This they say‥‥ Obj. Tonnage reported at .Ans. Bill of sale stated her at 59¾ tons. The French guager only measured her hold and part of her steerage from inside to inside; allowed nothing for the cockpit, cabbin, forecastle and above one half the steerage, which is almost half the vessel. The clearance was obliged to be by the register and that had been taken out by a Capt. Chas. Harrison at 21. to save expences and port charges in England where the Americans pay double duties as foreigners.” This MS is referred to in the notes below as the Outline.
1. Outline reads: “a little Bay-vessel of his own.”
2. In Asquith’s reply of 5 Dec. to TJ’s letter of 23 Nov. 1785 enclosing a copy of the state of the case, he remarked: “the only relations in your Coppy which is not right are. 1st. The Register, which was taken out by Capt. Chas. Harrison (when I was sick) unknown to me for 21 Tons (as he inform’d me to save port charges), but he did not own any part of her. 2nd. The 25th [i.e., 24th] when we carried away our foremast fore shroud, but did [not] carry away our foremast, which are the only mistakes in it.” See note 5.
3. The flour was taken on board on 17 June and the tobacco on 20 June. See note 5. Either the log of the William & Catherine or the clearance papers or TJ’s statement based on them must be in error here. According to the log, the cargo must have been taken on board after she “run aground at Smith’s Point, sprung a leak and was obliged to return to Baltimore to refit.” In one part of Outline TJ made the following remark: “He cleared out from Baltimore and sailed June 11th. Run ashore at Smith’s point and sprung a leak. Returned to Baltimore, hove her down and stopped the leak. Health being bad, took on board Capt. McNeil. Sailed again the 20th.”
4. Outline adds at this point: “when evacuated Nov. 1777.”
5. In Outline TJ first abbreviated the substance of the log as follows:
“Drove out to sea before cargo on board, and without any clearance but that from Baltimore. Sails not in a condition to stand the coast, so bore away for destination. Made lands end of England, but could not fetch it. Bore away for Scilly and came to anchor but blew so hard were obliged to put to sea. Made land of France but knew not what part. Had only 10 galls. water. 4 or 5 ℔ bread, 2 or 3 ℔ candles. No firewood. Sails not fit to trust any longer‥‥” TJ evidently felt that the state of the case would appear more convincing if he quoted directly from the log. However, it is obvious that his quotation is not exact. The entry for 24 June was cited by Asquith as being an error (see note 2). Moreover, he omitted the entries from 17 to 24 June, possibly because of the inconsistency indicated in note 3. The excerpts from the log, as recorded in the Outline, are as follows:
“June 17. Took on board 60. barrels flour. June 20. Took on board 8. hhds. tobo. and sailed for Norfolk. [June] 22. Came to in Hampton road. Sent ashore 50. barrels flour and 1 hhd. tobo. bad. Proposed to take in 9 hhds. tobo. more. Began to blow hard and rain. [June] 23. Heavy storm. Driven from their anchors and go before the wind. [June] 24. Weather grows worse. One of the fore shrouds carried away. Lost the foremast. [June] 25. Shifted ballast which hove them on their beam ends. Shipped a heavy sea. A consultation, result that being so far driven to sea it was better to steer for destination. [June] 30. First observation they had been able to take. 38°–13’. [June] 30. Winds begin to be light, but sea continues heavy. July 5. Light wind and smooth sea for the first time. In 43°52’. [July] 9. On bank N.F.L. spoke Fr. brig. Comte d’Artois from St. Maloes, Capt. Pierre Monreaux in distress. Relieved her with 3. barr. flour. Aug. 6. Thick weather and strong gale. Made land’s end of England. [Aug.] 7. Found could not fetch the land. Bore off for Scilly and came to anchor with both anchors. Drove. Got up the anchors and put to sea. Run to Southwd. [Aug.] 8. Made land of France, but did not know what part.” Clearly, this is not an exact transcript of the log of the William & Catherine, but a statement based on her log and on Asquith’s letters. There are thus at least three stages of the “log” in TJ’s hand: (1) as abbreviated in substance in Outline and as quoted at the beginning of this note; (2) as set down in Outline and “quoted” with exact dates, and (3) as given in the state of the case.
6. All other texts read: “4 or 5.”
7. Preceding four words are not in either Tr in DNA: PCC. In Outline TJ made the following remarks: “His register and original bill of sale he sent to Brest. Went to the Admiralty office and protested the real state of his case, and reported the vessel by the Register. The officer told him if she was no more, she would be confiscated. He was alarmed, told the real truth as to her register, and was allowed to report her according to the bill of sale.”
8. Preceding nine words are not in either Tr in DNA: PCC.