George Washington Papers

VII, 22 November 1793

VII

Thomas Jefferson’s Notes for GW’s Annual Address to Congress

[c.22 November 1793]1

Notes Text
cases where individuals (as Henfield &c.) organize themselves into military bodies within the U.S. or participate in acts of hostility by sea, where jurisdiction attaches to the person.3
   What is the present legal mode of restraint? binding to the good behavior? military restraint? or what? or can the act only be punished after it is committed?
   The Constitution having authorised the legislature exclusively to declare whether the nation, from a state of peace, shall go into that of war,2 it rests with their wisdom to consider Whether the restraints already provided by the laws are sufficient to prevent individuals from usurping, in effect, that power, by taking part, or arraying themselves to take part, by sea or by land, while under the jurisdiction of the U.S. in the hostilities of any one nation against any other with which the U.S. are at peace?
Vessels originally constituting themselves cruizers here, or those so constituted elsewhere & augmenting their force here, may they be seized & detained? by what branch of the government? e.g. the Polly or Republican at N.Y. the Jane at Philada the Industry at Baltimore. Their Prizes. may they be restored? e.g. the Lovely lass, Pr. Wm Henry, Jane of Dublin, the Spanish prize &c.4    Whether the laws have provided with sufficient efficacy & explicitness, for arresting & restraining their preparations & enterprizes, & for indemnifying their effects?
   Captures within our waters, by whom to be restored? e.g. the Grange, the William, the Providence, the William Tell &c5    Whether within the territory of the U.S. or those limits on it’s shores to which reason & usage authorize them to extend their jurisdiction & protection, & to interdict every hostile act, even between hostile nations, the partition of the National authority between the civil & military organs is delineated with sufficient precision to leave no doubt which of the two is justified, & is bound to interpose?
Cases of the Betsey, and American Vessel & Swedish cargo. the Maxwell, vessel & cargo Swedish.6    Whether either & Which of them is authorized to liberate our own property or that of other peaceable nations, taken on the high-seas & brought into our ports?
merely an intimation to establish all these cases with the judiciary.    Whether all such of these interferences as may be exercised by the judiciary bodies with equal efficacy, with more regularity, and with greater safety to the rights of individuals, citizen or alien, are already placed under their cognisance, so as to leave no room for diversity of judgment among them, no necessity or ground for any other branch to exercise them, merely that there may not be a defect of justice or protection, or a breach of public order?
   for a specification of some of these duties see Jay’s & Wilson’s charges.7 are they all sufficiently provided with specific punishments?
   Offences against the Law of Nations. Genet’s conduct is one. by that law the President may order him away. has the law provided for the efficacy of this order?
   And Whether the duties of a nation at peace towards those at war, imposed by the laws and usages of nature, & nations, & such other offences against the law of nations as present circumstances may produce, are provided for by the municipal law with those details of internal sanction and coercion, the mode & measure of which that alone can establish?8

other subjects

Proclamation

Report of balances between the states.

Western Indians

Creeks.

Provision of arms made, & to be made.

subsequent. Genet’s conduct
  England. inexecution of treaty.
    interception of our provisions.
 
  Spain. boundary & navigation of Missisipi.
    protection of Southern Indians.

AD, DLC:GW; AD (letterpress copy), DLC: Jefferson Papers.

The AD has check marks corresponding to each paragraph of “Text” and each topic of the “other subjects”; the letterpress copy does not.

1Jefferson recorded this document in his summary journal of public letters under the date 22 Nov. (DLC: Jefferson Papers; see Jefferson Papers description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950–. description ends , 27:423).

2The power to declare war is given to the legislature in Article 1, section 8.

3Gideon Henfield was tried in July 1793 on charges that he had violated his duty as a citizen by serving, contrary to GW’s Neutrality Proclamation, aboard the French privateer Citoyen Genet. For the trial and Henfield’s acquittal on 29 July, see Federal Cases description begins The Federal Cases: Comprising Cases Argued and Determined in the Circuit and District Courts of the United States from the Earliest Times to the Beginning of the Federal Reporter. 30 vols. St. Paul, 1894–97. description ends , 11:1099–1122.

4For the detention of the French privateer Republican (formerly Polly) at New York, see George Clinton to GW, 9 June, and n.4, and Cabinet Opinion, 12 June. For the case of the British privateer Jane at Philadelphia, see Thomas Mifflin to GW, 5 and 10 July, Cabinet Opinion, 12 July, and notes. For the French privateer L’Industrie, see Henry Knox to GW, 27 Aug. (first letter), n.2, and Thomas Sim Lee to GW, 7 Oct., and notes. The Lovely Lass, Prince William Henry, and Jane (of Dublin) were prizes of the French privateer Citoyen Genet (see Cabinet Opinion, 5 Aug., and notes 4 and 10). The Spanish brig San Josef was prize to the French privateer L’Aimée Marguerite at Wilmington, N.C. (see Richard Dobbs Spaight to GW, 21 Oct., and n.3 to that document).

5For the Grange, see Memorandum from Jefferson, 26 July, and n.5, and Edmund Randolph’s opinion on the Grange, 14 May (Jefferson Papers description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950–. description ends , 26:31–36). For the William, see Cabinet Opinion, 7 Sept., and n.3 to that document, and George Hammond to Jefferson, 5 June (Jefferson Papers description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950–. description ends , 26:199–201). For the William Tell, see Cabinet Opinion, 7 Sept., and n.3 to that document; Clinton to GW, 8 Sept., n.1; and Counter Case description begins The Counter Case of Great Britain as Laid before the Tribunal of Arbitration, Convened at Geneva under the Provisions of the Treaty between the United States of America and Her Majesty the Queen of Great Britain, Concluded at Washington, May 8, 1871. H. Exec. Doc. 324, 42d Cong., 2d sess., 1872. description ends , 595.

6The Betsey was captured in late June by the French privateer Citoyen Genet and taken to Baltimore, where it was condemned as a legal prize by the French consul Francis Moissonnier on 9 July. Meanwhile, the ship’s owners both appealed to the government and began litigation seeking to reclaim their property. GW’s administration refused to intervene, pending completion of the judicial process. Ultimately, the Supreme Court ruled in the case of Glass v. Sloop Betsey that federal courts had jurisdiction over such cases and that foreign nations did not have the right to erect courts of admiralty on United States territory, unless under special arrangement by treaty (Documentary History of the Supreme Court description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends , 6:296–355). The Maxwell was taken in August by the French privateer Sans Culotte and brought into Baltimore. There, in accordance with the instructions given in Secretary of War Henry Knox’s circular letter to the governors of 16 Aug. (see Knox to Tobias Lear, 17 Aug., n.1), the Maryland council had the ship seized for restoration to its owners, an action that Moissonnier protested (Thomas Jefferson to Henry Knox, 22 Aug.; Thomas Sim Lee to Jefferson, 3 Sept.; Jefferson to Lee, 13 Sept., Jefferson Papers description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950–. description ends , 26:740; 27:25–26, 108).

7Both these charges were given in response to attempts to enforce the Neutrality Proclamation. For Supreme Court Justice John Jay’s charge of 22 May to the grand jury of the United States Circuit Court of Virginia and Supreme Court Justice James Wilson’s charge of 22 July to the grand jury of the United States Circuit Court of Pennsylvania, see Documentary History of the Supreme Court description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends , 2:380–91, 414–23.

8Jefferson wrote the remaining words of this document upside down at the bottom of the “Notes” column.

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