To Henry Dearborn
[5 Mch. 1802]
Th: Jefferson to
I have been looking into the case which is the subject of Majr. Foreman’s letter from St. Mary’s, stating that the Govr. of E. Florida proposes to enlist souldiers within our territory for an expedition against the Creeks. the statute of June 14. 1797. is only against naval enterprizes. but that of Mar. 3. 1799 regulating intercourse with the Indians, comes perfectly up to this case in sections 3. 4. 6. by which to go on the Indian lands without a passport is punishable by fine of 50. D. & 3. months imprisonment, to go on them with an hostile intention, or to commit on them a robbery, larceny, trespass or other crime by fine of 100. D. & 12. months imprisonment, and to murder an Indian is punisheable by death. besides this if it be known that any person proposes to go on such an expedition, a justice of peace may prevent it by arresting him & committing him to jail until he gives security against a breach of the peace. as to taking an oath of allegiance to Spain, the law will consider that as merely a cover for the crime meditated, a mere fraud, which will have no other effect than to prove a more deliberate premeditation of the crime. this case will be clearly within the positions of the Attorney General’s opinion in Henfield’s case, May 30. 93.
The law regulating intercourse with the Indians expired the day before yesterday. but it will doubtless be revived. I think therefore we shall be safe in making a communication to Majr. Foreman on the hypothesis of it’s being in force.
RC (NjP); undated. PrC (DLC). Recorded in SJL as a letter of 5 Mch. to the War Department, with notation: “enlisting souldiers by Spands.”
MAJR. FOREMAN’S LETTER FROM ST. MARY’S: TJ mistook the name of Major Constant Freeman, a U.S. artillery officer in command of Fort Johnson, South Carolina. On 19 Feb., Freeman sent the War Department a copy of a letter from Captain Richard Scott Blackburn at Fort Washington on the Saint Marys River. That river separated Georgia from Spain’s province of EAST FLORIDA and formed the southern boundary of the United States as specified by the Pinckney Treaty of 1795. Blackburn reported that the governor of East Florida had called out the province’s militia in response to an attack by Indians on a Spanish settlement. Blackburn also related a hearsay report that the governor intended to enlist men in Georgia for an EXPEDITION AGAINST THE CREEKS. The governor of East Florida was Enrique White, a native of Ireland who had entered the Spanish army as a cadet and advanced to the rank of brigadier general. “It will be only necessary to swallow an Oath for the term of the Expedition,” he reportedly said of the prospective recruitment in Georgia. From January to March 1802, William A. Bowles and his Native American allies laid siege to St. Marks in an ultimately unsuccessful effort to recapture that fort. Spanish authorities also held Bowles responsible for various attacks by Indians along the Florida frontiers. On 22 Mch., Carlos Martínez de Irujo wrote to Madison insisting that the United States take action. Stating that Bowles had his base of operations in U.S. territory, Irujo cited Article 5 of the Pinckney Treaty, which obliged the United States and Spain “expressly to restrain by force all hostilities on the part of the Indian Nations living within their boundaries” (Freeman to Henry Burbeck, 19 Feb. 1802, enclosing copy of Blackburn to Freeman, 11 Feb., in DNA: RG 107, LRUS; Dearborn to Mahlon Ford and others, 11 June 1801, in same, LSMA; 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 , 2:319–20, 322; Madison, Papers description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962–, 32 vols. Sec. of State Ser., 1986–, 8 vols. Pres. Ser., 1984–, 6 vols. Ret. Ser., 2009–, 1 vol. description ends , Sec. of State Ser., 3:63–4; J. Leitch Wright, Jr., William Augustus Bowles: Director General of the Creek Nation [Athens, Ga., 1967], 152–3; William S. Coker and Thomas D. Watson, Indian Traders of the Southeastern Spanish Borderlands: Panton, Leslie & Company and John Forbes & Company, 1783–1847 [Pensacola, Fla., 1986], 237–8; David Hart White, Vicente Folch, Governor in Spanish Florida, 1787–1811 [Washington, D.C., 1981], 59–60; Eileen A. Sullivan, “Irish Military Men Serving Spain in North America in the 18th and 19th Centuries,” The Irish Sword: The Journal of the Military History Society of Ireland, 21 , 387–8; Heitman, Dictionary description begins Francis B. Heitman, comp., Historical Register and Dictionary of the United States Army, Washington, D.C., 1903, 2 vols. description ends , 1:222, 262, 435; Vol. 33:175).
The 14 June 1797 STATUTE was “An Act to prevent citizens of the United States from Privateering against nations in amity with, or against citizens of the United States” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 1:520).
Gideon HENFIELD’S CASE was an issue for the Washington administration when TJ was secretary of state. Henfield, a mariner originally from Massachusetts, enlisted for service on the Citoyen Genet, which sailed from Charleston, South Carolina, as a French privateer authorized by Edmond Charles Genet. Washington’s Proclamation of Neutrality prohibited Americans from serving any of the nations that were at war, and when Henfield arrived in Philadelphia as the master of a captured prize, the cabinet unanimously agreed to prosecute him as a test case. There was no statute covering that provision of the proclamation, but in an opinion of 30 May 1793 requested by TJ, Attorney General Edmund Randolph argued that the seaman could be prosecuted because according to treaties between the United States and several of France’s enemies, American citizens could not fight against those countries. Treaties “are the Supreme law of the land,” Randolph stated. He said that Henfield could also be indicted under common law “because his conduct comes within the description of disturbing the Peace of the United States.” The prosecution of Henfield—whom a jury acquitted—contributed to the rift between the U.S. government and Genet (Vol. 26:40–1, 130–1, 145–6, 159–61, 198, 702).