Note on Passports
When the war broke out which is now raging in Europe, our treaties with France,1 and Holland required that we should furnish to the vessels ‘belonging to the citizens of the US.’ passports in the forms prescribed by the treaties. it was very early made a question whether they should be granted to all vessels belonging to citizens of the US. or only to those built as well as belonging here. the then Secretary of the treasury was at first of opinion they should be confined to home built vessels. the preceding opinion of a contrary tenure was then given to President Washington. The Secretary of the treasury, in result, came over to it, so that by the unanimous advice of the heads of departments, approved by the President, it became the rule of the government. when afterwards (1795. Sep. 5.) a treaty with Algiers (Art. IV.) rendered necessary another form of passport for all vessels ‘the property of citizens of the US.’ it seems strange that those in the habit of giving French & Dutch passports to American-owned vessels, should refuse them the Algerine or Mediterranean pass; and should again immediately on the establishment of the treaties with Spain & England (Oct. 95. & May 96.) give them Spanish & English in addition to their French & Dutch passes. the reasoning in the preceding opinion which needs not be repeated here, is concieved to be equally conclusive for the Algerine, as for the passports of the other nations.—It is said, I observe, that the act of 1796. c. 45. was understood to exclude foreign-built vessels from the Mediterranean passport. but I see nothing like it in that act. the words are ‘every vessel of the US. going to any foreign country shall be furnished with a passport of the form approved by the President for the vessels of the US.’ if, as the government deemed, these expressions still enjoined them to give the French, Dutch, Spanish & English passports to foreign-built vessels owned at home, how could they understand them as excluding those vessels from the Mediterranean pass? where is the shadow of distinction to be found in these words?—the act of Dec. 31. 1792. c. 1. had said “vessels registered by virtue of the ‘Act for registering’ &c. and no other, shall be deemed vessels of the US. entitled to the privileges appurtaining to such ships & vessels.” to what privileges? obviously the privilege of paying lower rates of duties. but tho’ not entitled to a privilege, they are not stripped of rights. protection is a right, not claimed under this act, but under the general laws for the security of property, and protection against a foreign nation is as much a right, as against an individual of our own nation. if witholding the privilege of lower duties takes away the right of protection against a foreign nation, it must also take it away as against an individual; and consequently the owner dispossessed of his vessel by a citizen, cannot maintain an action for her recovery. but this act never meant to outlaw our foreign built vessels; but only to secure to the home built the privilege of lower duties, leaving unimpaired the common rights of others.
The observation is moreover sound that tho’ the law says the home-built vessel shall be furnished with a passport, it does not say the foreign built shall not. the general laws therefore entitling the citizen to a protection for his property, and no law authorising the witholding it, such witholding would be a wrong.
I think therefore the home owned vessel as well entitled to a Mediterranean as to a French, Dutch, Spanish or English passport.
MS (DLC: Madison Papers); entirely in TJ’s hand; subjoined to Enclosure No. 1 listed above. PrC (DLC); with TJ’s cover letter above pressed at bottom of second sheet.
Preceding opinion: see Enclosure No. 1, described above. TJ clearly argued in 1793 that U.S. citizens who owned foreign-built vessels were entitled to the protection provided by U.S. passports (Vol. 25:645–8).
1. TJ here canceled “Spa.”