To George Hammond
Germantown Nov. 14. 1793.
I have to acknowledge the receipt of your letter of the 7th. instant, on the subject of the British ship Roehampton, taken and sent into Baltimore by the French privateer the Industry, an armed Schooner of St. Domingo, which is suggested to have augmented her force at Baltimore before the capture.1 On this circumstance a demand is grounded2 that the prize she has made shall be restored.
Before I proceed to the matters of fact in this case, I will take the liberty of calling your attention to the rules3 which are to govern it. These are—
Ist. That restitution of prizes has been made by the Executive of the United States only in the two cases 1. of capture, within their Jurisdiction, by4 armed vessels originally5 constituted such without the limits of6 the united States; or 2d. of7 capture, either within or without their jurisdiction, by armed vessels, originally constituted such within the limits of the8 United States, which last have been called proscribed vessels.
IInd. That all military equipments9 within the ports of the United States are forbidden to the vessels of the Belligerent powers,10 even where they have been constituted vessels of war11 before their arrival in our ports; and where such equipments have been made before detection, they are ordered to be suppressed when detected,12 and the vessel reduced to her original condition. But if they escape detection altogether, depart and make prizes, the Executive has not undertaken to restore the prizes.
With due care, it can scarcely13 happen that military equipments of any magnitude shall escape discovery.14 Those which are small may sometimes, perhaps, escape, but to pursue these so far as to decide that15 the smallest circumstance of military equipment to a vessel in our ports shall invalidate her prizes through all time, would be a measure of incalculable consequences. And since our interference must be governed by some general rule, and between great and small equipments no practicable line of distinction can be drawn,16 it will be attended with less evil on the whole to rely on the efficacy of the means of prevention, that they will reach with certainty equipments of any magnitude and the great mass of those of smaller importance also: and if some should in the event, escape all our vigilance, to consider these as of the number of cases which will at times baffle the restraints of the wisest and best guarded rules which human foresight can devise. And I think we may safely rely that since the regulations which got into a course of execution about the middle of August last, it is17 scarcely possible that equipments of any importance should escape18 discovery.
These principles shewing that no demand of restitution lies on the ground of a mere military alteration or an augmentation of force, I will consider your letter only as a complaint that the orders of the President prohibiting these, have not had their effect in the case of the Industry, and enquire whether, if this be so, it19 has happened either from neglect or connivance in those charged with the execution of these orders. For this we must resort to facts which shall be taken from the evidence furnished by yourself, and the British vice Consul at Baltimore, and from that which shall accompany this letter.
About the beginning20 of August the Industry is said to have21 arrived at Baltimore with the French fleet from St. Domingo.22 The particular state of her armament on her arrival is lately questioned, but it is not questioned, that she was an armed vessel of some degree. The Executive having received an intimation that two vessels were equipping themselves at Baltimore for a cruise, a letter was on the 6th. of Augt. addressed by the Secretary of war23 to the Governor of Maryland, desiring an inquiry into the fact. In his absence, the Executive Council of Maryland charged one of their own Body, the honorable Mr. Kilty, with the inquiry. He proceeded to Baltimore, and after two days examination found no vessel answering the description of those which were the object of his inquiry. He then engaged the British Vice Consul in the search, who was not able, any more than himself to discover any such vessels. Captain Kilty, however, observing a Schooner, which appeared to have been making some equipments for a cruise, to have added to her guns, and made some alteration to her waist, thought these circumstances merited examination,24 though the rules of August had not yet appeared. Finding that his inquiries excited suspicion, and fearing the vessel might be withdrawn, he had her seized, and proceeded in the investigation.25 He found that she was the Schooner Industry, Captain Carven, from St. Domingo, that she had been an armed vessel for three years before her coming here,26 and as late as April last had mounted 16 Guns; that she now mounted only 12. and he could not learn that she had procured any of these or done any thing else, essential to her as a privateer, at Baltimore. He therefore discharged her, and on the 23d. of August, the Executive Council made the report to the Secretary at war, of which I enclose you a copy.
About a fortnight after this (Sep. 6.) you added to a letter on other business a short paragraph saying that you had ‘lately received information that a vessel named the Industry had within the last 5 or 6 weeks been armed, manned, and equipped in the port of Baltimore.’ The proceedings before mentioned having been in another department, were not then known to me. I therefore could only communicate this paragraph to the proper Department. The separation of the Executive within a week after prevented any explanations on the subject: and without them27 it was not in my power either to controvert or admit the information you had received. Under these circumstances I think you must be sensible, Sir, that your conclusion from my silence, that I regarded the fact as proved, was not a very necessary one.
New inquiries, at that time, could not have prevented the departure of the privateer, or the capture of the Roehampton: for the privateer had then been out some time. The Roehampton was already taken and was arriving at Baltimore; which she did28 about the day of the date of your letter. After her arrival, new witnesses have come forward to prove29 that the Industry had made some military equipments at Baltimore before her cruise. The affidavits taken by the British Vice Consul are dated about 9 or 10 days after the date of your letter and30 arrival of the Roehampton: and we have only to lament that those witnesses had not given their information to the Vice Consul31 when Mr. Kilty engaged his aid in the inquiries he was making, and when it would have had the effect of our detaining the privateer till she should have reduced herself to the condition in which she was when she arrived in our ports, if she had really added any thing to her then force. But supposing the testimony just and full (tho’ taken ex parte, and not under the legal sanction of an oath) yet the Governor’s refusal to restore the prize, was perfectly proper; for, as has been before observed, restitution has never been made by the Executive, nor can be made32 on a mere clandestine alteration33 or augmentation of military equipment, which was all that the new testimony tended to prove.
Notwithstanding, however that the President thought the information34 obtained on the former occasion had cleared this privateer from any well grounded cause of arrest, yet that which you have now offered opens a possibility35 that the former was defective. He has therefore desired new inquiry to be made before a magistrate legally authorized to administer an oath, and indifferent to both parties, and should the result be that the vessel did really make any military equipments in our ports, instructions will be given to reduce her to her original condition, whenever she shall again36 come into our ports.
On the whole, Sir, I hope you will percieve that on the first intimation, thro’ their own channels, and without waiting for information on your part, that a vessel was making military equipments at Baltimore, the Executive took the best measures for inquiring into the fact in order to prevent or suppress such equipments—that an Officer of high respectability was charged with the inquiry, that he made it with great diligence himself,37 and engaged similar inquiries on the part of your Vice Consul, that neither of them could find that this privateer had made such equipments, or of course that there was any ground for reducing or detaining her; that at the date of your letter of Sep. 6. (the first intimation received from you) the Privateer was departed, had taken her prize, and that prize was arriving in port; that the new evidence taken 10 days after that arrival can produce no other effect than the institution of a new38 inquiry, and a reduction of the force of the privateer, should she appear to have made any military alterations or augmentation, on her return into our ports, and that in no part of this procedure is there the smallest ground for imputing either negligence or connivance to any of the officers who have acted in it. I have the honor to be, with much respect Sir, Your most obedient and most humble servant,
PrC (DLC); in the hand of George Taylor, Jr., unsigned, with dateline and minor corrections added in ink by TJ; at foot of first page: “The minister plenipoy. of Great Britain.” Dft (DLC: TJ Papers, 94:16214–15); heavily emended text in TJ’s hand, undated and unsigned, with two marginal notes by Alexander Hamilton (see notes 6 and 35 below); only the most significant revisions are recorded below; notations at foot of text: (by Edmund Randolph) “I think the draught very proper E. R.” (by Hamilton) “approved A H” and (by TJ) “the fair copy was sent to Genl. Knox, at his house with a request to forward it to Mr. Hammond if he approved of it” (but see TJ to Henry Knox, with Jefferson’s Note, 15 Nov. 1793). FC (Lb in DNA: RG 59, DL). Tr (Lb in PRO: FO 116/3). Recorded in SJPL. Enclosure: Extract of James Brice to Henry Knox, Annapolis, 23 Aug. 1793, stating, in his capacity as president of the Maryland Council and acting governor during Thomas Sim Lee’s absence, that the Council authorized one of its members, John Kilty, to proceed to Baltimore in order to investigate the reported fitting out there of two French privateers as mentioned in Knox’s 6 Aug. letter to Lee; that after two days of fruitless inquiries Kilty enlisted the help of British Vice-Consul Edward Thornton, who was also unable to find any evidence of them; that during an inspection from the public barge of all the vessels in Baltimore harbor, which also failed to detect the privateers, Kilty observed a schooner at a Fell’s Point wharf mounting twelve guns that could not be the Virginia pilot boat noted by Knox because of its size and its having arrived with the fleet from Saint-Domingue; that after a limited investigation designed to prevent alarm Kilty ascertained that the schooner was preparing for a cruise, having apparently increased its guns and altered its waist since its arrival, though he could not learn where it had procured the additional cannon; that Kilty returned to Fell’s Point to conduct a final investigation in order to determine whether he would be justified in detaining the schooner for violating what he understood to be the ban on all military equipment in American ports, the federal government’s regulations on this subject not yet having appeared; that Kilty had the schooner seized by Deputy Marshal Jacob Graybill in the absence of its captain and officers after learning that news of his intended investigation was being brought to the ship; that after instructing Graybill to prevent the schooner from leaving the wharf Kilty conducted an unrestricted investigation which failed to reveal that the ship had taken on any guns or equipment in Baltimore that were essential to it as a privateer; that upon leaving the schooner to return to Baltimore and find its captain, Kilty prevented a “considerable body” of Frenchmen with a leader and drum at their head from taking possession of the ship after informing them that it was being detained by authority; that the next morning Jean Baptiste Carvin, the captain and owner, angrily demanded an explanation of the seizure from Kilty, who pointed to the increase in the number of its guns as the principal reason; that Carvin produced papers from Saint-Domingue officials showing that the schooner, the Industry, had carried guns for the past three years and that on 11 Apr. 1793 it mounted sixteen guns and had a crew sufficient for privateering, as well as a commission or license for cruising under which prizes went to the government while the captors received a reasonable gratification; that Carvin asserted that he had obtained no guns and no military equipment except for a few spare rammers while in Baltimore and that the extra guns he had mounted there had been brought in his hold; that Carvin admitted purchasing some cordage and cleaning the schooner’s bottom in Baltimore and asked if all the armed vessels now in the harbor were not therefore also liable to detention; that being unable to disprove Carvin’s assertions and wishing to avoid heavy charges to the public for the detention, Kilty had the French vice-consul verify the papers presented by Carvin and then ordered Graybill to release the Industry (PrC of Tr in DLC, in a clerk’s hand; Tr in Lb in DNA: RG 59, DL; FC in MdAA: Letterbooks of Governor and Council, also containing a section dealing with Kilty’s report on another letter from Knox about alleged preparations in Baltimore for an expedition against Saint-Domingue). Enclosed in TJ to George Washington, [16 Nov. 1793].
The regulations in question are contained in Rules on Neutrality, 3 Aug. 1793. For the evidence furnished by Hammond and the British Vice Consul at Baltimore, Edward Thornton, see the enclosures listed at Hammond to TJ, 7 Nov. 1793 (first letter). Henry Knox’s letter of the 6th. of Augt. to Governor Thomas Sim Lee of Maryland is described in note to same. a Magistrate legally authorized: see TJ to Zebulon Hollingsworth, 14 Nov. 1793 (second letter).
After obtaining the approval of Alexander Hamilton and Edmund Randolph for the rough draft of this letter, TJ submitted a text of the final version to the President on 16 Nov. 1793, and Washington returned it the same day (Washington, Journal description begins Dorothy Twohig, ed., The Journal of the Proceedings of the President, 1793–1797, Charlottesville, 1981 description ends , 252; Cabinet Opinions on Various Letters, [23 Nov. 1793]).
1. In Dft TJ here canceled “whereon you require” and inserted a period before these words.
2. In Dft TJ first wrote “On that circumstance you ground a demand” and then altered it to read as above.
3. Word interlined in Dft in place of “principles.”
4. In Dft TJ here canceled “vessels.”
5. Word interlined in Dft.
6. Altered by TJ in Dft from “as such out of” in response to Hamilton, who wrote the preceding four words in the margin under his comment “substitute for perspicuity.”
7. Digit interlined and preceding word written over “to” in Dft.
8. Preceding three words interlined in Dft.
9. Preceding two words underscored in Dft.
10. Preceding seven words interlined in Dft in place of “by the Executive even to armed vessels constituted such.”
11. Preceding three words interlined in Dft in place of “such.”
12. In Dft TJ first wrote “have not been discovered till made, they are to be suppressed” and then altered it to read as above.”
13. Sentence to this point interlined in Dft in place of “For since the regulations which got into a course of execution about the middle of August last, it can scarcely ever.”
14. Word interlined in Dft in place of “detection.”
15. Preceding eight words interlined in Dft in place of “say that where a vessel shall have made even.”
16. Remainder of paragraph through “regulations” interlined in Dft in place of a heavily emended passage that in its final state read: “the measure attended with the least evil on the whole is to rely on the efficacy of the means adopted for preventing and suppressing such equipments, that they will reach with certainty those of any magnitude, and the great mass of those of the smaller kind also. And if some should in event escape all our vigilance, to consider these as of the number of cases which will at times escape the restraints of the wisest and best guarded rules which human wisdom can ever devise. And I think we may safely rely that since the regulations.”
17. In Dft TJ here canceled “believed to be.”
18. In Dft TJ here canceled “notice.”
19. Preceding five words interlined in Dft in place of “this.”
20. Preceding two words interlined in Dft in place of “second week in.”
22. In Dft TJ here canceled “armed for war in the character of an armed vessel.”
23. Preceding five words interlined in Dft.
24. Word interlined in Dft in place of “enquiry.”
25. Preceding two words interlined in Dft in place of “his enquiries.”
26. In Dft TJ first wrote “been for three years past an armed vessel” and then altered it to read as above.
27. In Dft TJ here canceled “I had nothing to write to you.”
28. Paragraph to this point in Dft written in the margin in place of a passage that in its final state read: “New enquiries at that time could not have prevented the departure of the privateer or the capture of the Roehampton, for the Privateer had now been out some time and the capture had already taken place. The Roehampton armed at Baltimore on or about.”
29. Sentence to this point interlined in Dft in place of “On this event the British Consul has been able to find testimony.”
30. Preceding six words interlined in Dft in place of “the.”
31. In Dft TJ first wrote “lament that the testimony has not been found” and then altered it to read as above.
32. Preceding four words interlined in Dft.
33. In Dft TJ first wrote “on a bare alteration” and then altered it to read as above.
34. Word interlined in Dft in place of “testimony […].”
35. At this point Hamilton wrote in the margin of the Dft “suppose probability.”
36. In Dft TJ first wrote “should she again” and then altered it to read as above.
37. Word interlined in Dft.
38. In Dft TJ here canceled “and more formal.”