Opinion on Ship Passports
It has been stipulated in our treaties with the French, Dutch and Prussians that when it happens that either party is at war, and the other neutral, the neutral shall give passports of a certain tenor to the vessels belonging to their subjects, in order to avoid dissension. And it has been thought best that passports of such high import to the persons and property of our citizens should have the highest sanction, that of the signature of the President, and seal of the US.—The authority of Congress also, in the case of Sea-letters to East-India vessels, was in favor of this sanction.—It is now become a question whether these Passports shall be given only to ships owned and built in the US. or may be given also to those owned in the US. though built in foreign countries.
The persons and property of our citizens are entitled to the protection of our government in all places where they may lawfully go. No law forbids a merchant to buy, own, and use a foreign-built vessel. She is then his lawful property, and entitled to the protection of his nation wherever he is lawfully using her.
The laws indeed, for the encouragement of ship-building, have given to home-built vessels the exclusive privilege of being registered and paying lighter duties. To this privilege therefore the foreign built vessel, tho owned at home, does not pretend. But the laws have not said that they withdraw their protection from the foreign built vessel. To this protection then she retains her title, notwithstanding the preference given to the home built vessel as to duties. It would be hard indeed, because the law has given one valuable right to home built vessels, to infer that it had taken away all rights from those foreign built.
In conformity with the idea that all the vessels of a state are entitled to it’s protection, the treaties beforementioned have settled that Passports shall be given, not merely to the vessels built in the US. but to the vessels belonging to them: and when one of these nations shall take a vessel, if she has not such a Passport, they are to conclude she does not belong to the US. and is therefore lawful prize. So that to refuse these Passports to foreign built vessels belonging to our merchants, is to give them up to capture with their cargoes.
The most important interests of the US. hang upon this question. The produce of the earth is their principal source of wealth. Our homebuilt vessels would suffice for the transportation of a very small part of this produce to market: and even a part of these vessels will be withdrawn by high premiums to other lines of business. All the rest of our produce then must remain on our hands, or have it’s price reduced by a war-insurance. Many descriptions of our produce will not bear this reduction, and would therefore remain on hand.
We shall lose also a great proportion of the profits of navigation. The great harvest for these is when other nations are at war, and our flag neutral. But if we can augment our stock of shipping only by the slow process of building, the harvest will be over while we are only preparing instruments to reap it. The moment of breeding seamen will be lost for want of bottoms to embark them in.
France and Holland permit our vessels to be naturalised with them. Not even to suffer theirs to be purchased here might give them just cause to revoke the privilege of naturalization given to ours, and would inflict on the shipbuilding states and artisans a severe injury.
Obj. To protect foreign built vessels will lessen the demand for ship building here.
Answ. Not at all. Because as long as we can build cheaper than other nations, we shall be employed of preference to others.—Besides shall we permit the greatest part of the produce of our feilds to rot on our hands, or lose half it’s value by subjecting it to high insurance, merely that our ship-builders may have brisker employ? Shall the whole mass of our farmers be sacrificed to the class of ship-wrights?
Obj. There will be collusive transfers of foreign ships to our merchants merely to obtain for them the cover of our Passports.
Answ. The same objection lies to giving passports to home-built vessels. They may be owned, and are owned by foreigners, and may be collusively retransferred to our merchants to obtain our passports.—To lessen the danger of collusion however, I should be for delivering passports in our own ports only. If they were to be sent blank to foreign ports to be delivered there, the power of checking collusion would be small, and they might be employed to cover purposes of no benefit to us, which we ought not to countenance, and to throw our own vessels out of business. But if issued only to vessels in our own ports, we can generally be certain that the vessel is our property, and always that the cargo is of our produce.—State the case that it shall be found that all our shipping, home-built and foreign-built, is inadequate to the transportation of our produce to market, so that after all these are loaded, there shall yet remain produce on hand. This must be put into vessels owned by foreigners. Should these obtain collusively the protection of our passport, it will cover their vessel indeed, but it will cover also our cargo. I repeat it then, that if the issuing passports be confined to our own ports, it will be our own vessels for the most part, and always our cargoes which will be covered by them.
I am therefore of opinion that passports ought to be issued to all vessels belonging to citizens of the US., but only on their clearing out from our own ports, and for that voyage only.
May. 3. 1793.
MS (DNA: RG 59, MLR); entirely in TJ’s hand. PrC (DLC); first page slightly torn; with two notations added at a much later date in ink by TJ to correct an error in placement after text had been bound, probably as part of the “Anas”: (at foot of second page) “go back for pa. 3. 4” and (at head of third page) “for pa. 1. 2. see after 4.” Tr (DLC: Madison Papers); made ca. 20 June 1801 in a clerk’s hand, signed and with minor corrections by TJ; at head of text: (in TJ’s hand) “Opinion given to President Washington” and (in an unidentified hand) “1793. by T.J.”; at foot of text: “(copy)”; enclosed, with subjoined [ca. 20 June 1801] note on passports in TJ’s hand, in TJ to James Madison and Albert Gallatin, 20 June 1801. Tr (Lb in DNA: RG 59, SDC). Entry in SJPL: “Opn on the Privileges of home built & home owned vessels.” Enclosed in Tench Coxe to TJ, 4 May 1793, and TJ to George Washington, 4 May 1793.
The French declaration of war on Great Britain and the Netherlands in February 1793 gave the European war a maritime dimension with obvious ramifications for the American carrying trade. According to commercial treaties the United States concluded with France in 1778, the Netherlands in 1782, and Prussia in 1785, when either party was at war, vessels belonging to citizens of the nation remaining neutral were to be issued sea letters or passports to confirm their neutral status. Prussia had been at war with France since 1792, but passports were not considered necessary for American vessels until the expansion of hostilities to England, Europe’s dominant naval power. TJ knew of the new combatants by 7 Apr. 1793 and issued at least one pass three days later requesting safe passage for every American member of a crew without calling for protection of the ship itself—evidently as a stopgap until he received official notification of hostilities and could obtain approval for the exact wording of the ship passports. By late April he had received official notification of the state of hostilities between France and Britain but still awaited a decision on whether the treaty with France was to be suspended in whole or in part. Until 6 May, when the President decided that the treaties of commerce and alliance with France would remain in force, TJ accordingly issued a few passports which followed the form prescribed by the Dutch treaty (Miller, Treaties description begins Hunter Miller, ed., Treaties and other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , ii, 23–4, 28–9, 80–2, 85–8, 172–3; TJ to George Washington, 7 Apr. 1793; passport to Philip Atkins, master, and ten members of the crew of the ship Sussex of Philadelphia, 10 Apr. 1793, Tr in DNA: RG 59, Letters Requesting Passports; George Hammond to TJ, 24 Apr. 179; Notes on Washington’s Questions on Neutrality and the Alliance with France, [6 May 1793]; TJ to Alexander Hamilton, 8 May 1793).
TJ prepared this opinion in connection with a Cabinet meeting held this day which dealt with the format and scope of the new passports. His use of the first person suggests that he composed this statement before the executive officers met, but his language in his letter transmitting it to the President the next day indicates that the Cabinet adopted his viewpoint. The antecedents to the meeting are obscure, but clearly Attorney General Edmund Randolph had been consulted prior to it and had raised doubts about whether the documents should carry the signature of the president (TJ to Edmund Randolph, 2 May 1793; Randolph to TJ, 2 May 1793; Tench Coxe to TJ, 4 May 1793). Under the Articles of Confederation sea letters had been granted by the authority of congress to American ships bound for remote ports in East-India and China, starting with that for the Empress of China in January 1784, but by a resolution of 12 Feb. 1788 Congress delegated responsibility for issuing these papers to the Secretary for Foreign Affairs. This authority was still considered valid under the Constitution, and the Secretary of State continued to dispense sea letters as late as 15 Mch. 1793, when a passport was issued to the ship Sampson, bound from Philadelphia for Canton (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 58–9; xxxiv, 39–40; “Fair Copies of Applications for Sea Letters,” DNA: RG 360, PCC; Certification to the President of issuance of a passport to the Sampson, 15 Mch. 1793, MS in DNA: RG 59, MLR, in the hand of George Taylor, Jr., signed by TJ, endorsed by Tobias Lear; Tr in Lb in same, SDC). These papers were signed by the President and countersigned by the Secretary of State, and the first paragraph of TJ’s opinion and subsequent practice show that despite Randolph’s opposition it was concluded that the precedent should be followed for wartime passports.
In view of the expanded European war the Cabinet must also have taken up the more important issue of whether such passports were to be issued to foreign-built ships owned by Americans. The language both of the East Indian sea letters and of the treaties concerned itself only with the verification of ownership, but laws passed in September 1789 and December 1792 had put the status of foreign-built ships owned at home in doubt by restricting registration to “ships or vessels of the United States” built in the United States or already owned by Americans prior to 16 May 1789 (Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials, Washington, D.C., Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The first two volumes of the set cited here have “Compiled … by Joseph Gales, Senior” on the title page and bear the caption “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. The remaining volumes bear the caption “History of Congress” on both recto and verso pages. Those using the first two volumes with the latter caption will need to employ the date of the debate or the indexes of debates and speakers. description ends , ii, 2217, iii, 1397). TJ argued that the statutes defined a privilege for customs purposes but should not be interpreted as denying government countenance and protection to other American-owned vessels. Washington must have agreed, for this day TJ informed the Commissioner of the Revenue that sea letters were to be issued to all American-owned vessels (TJ to Coxe, 3 May 1793). This liberality in granting sea letters probably contributed to the very rapid expansion of the carrying trade of the United States which ensued, despite restrictions imposed by England and France, during the years preceding the embargo of 1807 (Anna C. Clauder, American Commerce as Affected by the Wars of the French Revolution and Napoleon, 1793–1812 [Philadelphia, 1932], 25, 67–79). For continuing doubts about the status of American-owned, foreign-built ships, which led to their being denied the Mediterranean pass, a different form of passport issued to protect American ships under the terms of a treaty with Algiers, from their first issuance in 1796 until TJ as president acted to extend the coverage of this document to such vessels, see TJ to James Madison and Albert Gallatin, 20 June 1801, and its enclosure. See also Moore, Digest description begins John B. Moore, A Digest of International Law, Washington, D.C., 1906, 8 vols. description ends , ii, 1007–69.