To James Madison
Monticello Aug. 22. 1801.
Your’s of the 18th. is recieved, and I now return all the papers which accompanied it, (except those in Bingham’s case) and also the papers inclosed in that of the 16th.—The case of the British Snow Windsor taken by the prisoners she was carrying & brought into Boston is new in some circumstances. yet I think she must fairly be considered as a prize made on Great Britain, to which no shelter or refuge is to be given in our ports, according to our treaty. a vessel may be made prize of by persons attacking from another vessel, or from the shore, or from within itself. it is true the masters declaration is that the prisoners were French, Swedes, Dutch, Danes, Spaniards & one American, without saying in the French service; but the French, Dutch & Spaniards were enemies, and the others must have been in enemy’s service or they were pirates. the case of the Spanish prize sent away may be urged on us, & I see no reason why we should attempt an exception to the general rule for this singular & small description of cases. I hardly imagine Pichon will object to it, further than to strengthen the force of a precedent which is in the long run to be so much in favor of France & Spain, who are captured ten times where they are once captors. still, wishing you to revise this opinion of mine, I refer it back to yourself to give the order for departure, or any other answer you think best.—Toussaint’s offence at our sending no letters of credence with mr Lear is not regular. such letters are never sent with a Consul, nor to a subordinate officer. the latter point, I doubt not, is that of the offence.—Poinsette’s application requires attention as a precedent. a frigate is going on public service. we give a passage to our own minister & his suite. that is in rule. a French chargé (Le Tombe) asks a passage. he is allowed it with the consent of mr Livingston. this too is in rule as a matter of comity, and a return for similar civilities from that nation. in 1782–3. I was to have gone in the Romulus, on the offer of the French minister. they actually went to the expence of building a round house for my sole accomodation. but have we a right to give passages generally to private individuals whenever a public vessel is passing from one place to another? what would the public vessels become in that case? it is true I have given Thomas Paine a passage in the Maryland: but there is a clear enough line between Thomas Paine & citizens in general. if mr Poinsette could get mr Livingston to recieve him as one of his suite, there would be no inconvenience in the precedent. these are my hasty thoughts on the subject. be so good as to weigh & correct them, & do in it what you think right.—do you know if mr Dallas has commenced another prosecution against Duane on behalf of the Senate? either this should be done, or an official opinion given against it. perhaps it would be best to do it, & leave to juries & judges to decide against it’s being sustainable.—what would you think of Clay of Philadelphia for the Consulship of Lisbon? it has been suggested that he might perhaps accept it. we cannot expect a man of better talents. if you have no reason in opposition to it, I will have it proposed to him privately through the channel which suggested it.—is it not worthy of consideration whether we should not, through mr Livingston, propose to Prussia to exchange the new articles inserted in our late treaty for the old ones of the former omitted in it? the change was excessively against her will, & places us in a disgraceful position as to interesting principles of public law.—there is a Charles D. Coxe (brother in law of Tenche) so well recommended for a Consulship that I wish he could be gratified.—Bingham’s case shall be the subject of the next letter. respect & attachment to mrs Madison & miss Payne; affectionate friendship to yourself.
RC (DLC: Madison Papers); at foot of first page: “The Secretary of State.” PrC (DLC).
Toussaint’s Offence: the July 1801 constitution for Saint-Domingue made Toussaint-Louverture governor for life. When Tobias Lear arrived on the island that month, Toussaint initially refused to look at Lear’s commission as U.S. commercial agent. Taking offense that TJ had not formally addressed him as head of state, the governor said “that his Colour was the cause of his being neglected, and not thought worthy of the Usual attentions.” Lear convinced Toussaint that his mission did not require a formal letter of credence from the president, and the governor then received Lear with the appropriate protections in the execution of his office (National Intelligencer, 12 Aug. 1801; Madison, Papers, Sec. of State Ser. description begins J. C. A. Stagg, ed., The Papers of James Madison, Secretary of State Series, Charlottesville, 1986–, 8 vols. description ends , 1:243–4, 427–8; Ray Brighton, The Checkered Career of Tobias Lear [Portsmouth, N.H., 1985], 183; Lear to TJ, 25 July 1801).
In the winter of 1782–83, TJ accepted from French minister La Luzerne an offer of transport on the frigate Romulus, bound for France where TJ was to assume ministerial duties. Ice in the Baltimore port postponed his departure, which was later canceled altogether when news reached Congress that the provisional treaty of peace had already been ratified (Vol. 6:210–11).
TJ extended an offer to Thomas Paine of return passage from France on the Maryland (which Paine declined), but the offer to a private citizen of the use of a public vessel spurred an outcry in the Federalist press (Jerry W. Knudson, Jefferson and the Press [Columbia, S.C., 2006], 68–74; Vol. 32:185, 191; TJ to Paine, 18 Mch. 1801, and Paine to TJ, 9 June).