Opinion on the Restoration of Prizes, 16 May 1793

Opinion on the Restoration of Prizes

The facts suggested, or to be taken for granted, because the contrary is not known, in the case now to be considered, are, that a vessel was purchased at Charleston and fitted out as a privateer by French citizens, manned with foreigners chiefly, but partly with citizens of the US. the command given to a French citizen by a regular commission from his government, that she has made prize of an English vessel in the open sea, and sent her in to Philadelphia. The British minister demands restitution, and the question is Whether the Executive of the US. shall undertake to make it?

This transaction may be considered 1. as an offence against the US. 2. as an injury to Great Britain.

In the 1st. view it is not now to be taken up, the opinion being that it has been an act of disrespect to the jurisdiction of the US. of which proper notice is to be taken at a proper time.

Under the 2d. point of view, it appears to me wrong on the part of the US. (where not constrained by treaties) to permit one party in the present war to do what cannot be permitted to the other. We cannot permit the enemies of France to fit out privateers in our ports, by the 22d. article of our treaty. We ought not therefore to permit France to do it, the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair and secure neutrality.1 Yet considering that the present is the first case which has arisen, that it has been in the first moment of the war, in one of the most distant ports of the US. and before measures could be taken by the government to meet all the cases which may flow from the infant state of our government and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the government. In this last light it cannot be taken, because the act from which it results placed the US. with the offended, and not the offending party. Her minister has seen himself that there could have been on our part neither permission nor connivance. A very moderate apology then from the US. ought to satisfy Great Britain. The one we have made already is ample, to wit, a pointed disapprobation of the transaction, a promise to prosecute and punish according to law such of our citizens as have been concerned in it, and to take effectual measures against a repetition. To demand more, would be a wrong in Gr. Britain: for to demand satisfaction beyond what is adequate, is a wrong. But it is proposed further to take the prize from the captors and restore her to the English. This is a very serious proposition.

The dilemma proposed in our conferences, appears to me unanswerable. Either the commission to the commander of the privateer was good, or not good. If not good, then the tribunals of the country will take cognisance of the transaction, recieve the demand of the former owner, and make restitution of the capture: and there being, on this supposition, a regular remedy at law, it would be irregular for the government to interpose.—If the commission be good, then the capture having been made on the high seas, under a valid commission from a power at war with Gr. Britain, the British owner has lost all his right, and the prize would be deemed good even in his own courts, were the question to be brought before his own courts. He has now no more claim on the vessel than any stranger would have who never owned her, his whole right being transferred by the laws of war to the captor.

The legal right then being in the captor, on what ground can we take it from him? Not on that of right, for the right has been transferred to him. It can only be by an act of force, that is to say, of reprisal for the offence committed against us in the port of Charleston. But the making reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction2 ought to precede; and when reprisal follows, it is considered as an act of war, and never yet failed to produce it in the case of a nation able to make war.—Besides, if the case were important enough to require reprisal, and ripe for that step, Congress must be called on to take it; the right of reprisal being expressly lodged with them by the constitution, and not with the executive.

I therefore think that the satisfaction already made to the government of Great Britain is quite equal to what ought to be desired in the present case: that the property of the British owner is transferred by the laws of war to the captor; that for us to take it from the captor would be an act of force or reprisal which the circumstances of the case do not justify, and to which the powers of the Executive are not competent by the constitution.

Th: Jefferson

MS (DLC: Washington Papers); entirely in TJ's hand; endorsed by Bartholomew Dandridge, Jr. PrC (DLC); partially overwritten in a later hand. Tr (Lb in DNA: RG 59, SDC); at head of text: “The heads of Departments & the Attorney General of the US. having been called upon by the President of the US. to give their opinions on the subject of the Government of the US. interfering, to cause restoration to be made of certain vessels taken as prizes by a French privateer, fitted out at Charleston, & brought into the Port of Philadelphia, The Secretary of State gave the following opinion.”

  1. TJ first wrote “a fair neutrality” and then altered it to read as above.
  2. Preceding four words interlined.