The gazette (Portland, Me.), 1798-05-28 00:00:00

The Gazette.
[NUMBER 5.]
By ELEZER ALLEY JENKS, Portland, Maine.
[VOLUME 1.]
Monday, May 28, 1798.
Documents from our Envoys.
MEMORIAL TO THE FRENCH GOVERNMENT.
(Continued from the last Gazette.)
AT the same time the exertions of the United States to pay up the arrears of their debt to France, which had been unavoidably permitted to accumulate, to make disinterested and liberal advances to the sufferers of St. Domingo, thrown suddenly upon them, without provisions or money, whose recommendation was that they were Frenchmen and unfortunate, the perseverance with which they apologized for and ascribed any occasional injuries they sustained to the force of circumstances, the interest which they continued openly to take in all the fortunes of this republic, manifested partialities of a very different sort from those which have been so unjustly attributed to them.
At this period too, a great principal was brought into discussion, the dispassionate consideration of which is essential to the fair estimate of the charges made by France against the government of the United States. The property of French citizens was taken by British cruisers and ships of war, out of American bottoms, and the American government submitted to the practice.
The propriety of submitting to it depends entirely on the naked right of the captors, under the existing circumstances of the case, to exercise such a power. The circumstances were these. In the treaty of commerce made between France and the United States in February 1778, it was stipulated in substance, that neither party should take out the vessels of the other, the goods of its enemy, but that the character of the bottom should be imparted to its cargo. With England the United States had made no stipulation on the subject.
It follows that the rights of England, being neither diminished or increased by compact, remained precisely in their natural state, and were to be ascertained by some pre-existing acknowledged principle.
This principle is to be searched for in the law of nations. That law forms, independent of compact, a rule of action by which the sovereignties of the civilized world consent to be governed. It prescribes what one nation may do without giving just cause of war, and what, of consequence, another may and ought to permit, without being considered as having sacrificed its honour, its dignity or independence.
What then is the doctrine of the law of nations on this subject? Do neutral bottoms of right, independent of particular compact, protect hostile goods? The question is to be considered on its own right, uninfluenced by the wishes or the interests of a neutral or belligerent power.
It is a general rule that war gives to a belligerent power a right to seize and confiscate the goods of his enemy.—However humanity may deplore the application of this principle, there is perhaps no one to whom man has more universally assented, or to which jurists have more uniformly agreed. Its theory and its practice have unhappily been maintained in all ages. This right then may be exercised on the goods of an enemy wherever found, unless opposed by some superior right. It yields by common consent to the superior right of a neutral nation to protect, by virtue of its sovereignty, the goods of either of the belligerent powers found
within its jurisdiction. But can this right of protection, admitted to be possessed by every government within its own limits in virtue of its absolute sovereignty, be communicated to a vessel navigating the high seas?
It is supposed that it cannot be so communicated; because the ocean being common to all nations no absolute sovereignty can be acquired in it; the rights of all are equal, and must necessarily check, limit and restrain each other. The superior right therefore of absolute sovereignty to protect all property within its own territory, ceases to be superior when the property is no longer within its own territory, and may be encountered by the opposing acknowledged right of a belligerent power to seize and confiscate the goods of his enemy. If the belligerent permits the neutral to attempt, without hazard to himself, thus to serve and aid his enemy, yet he does not relinquish the right of defeating that attempt whenever it shall be in his power to defeat it. Thus it is admitted that an armed vessel may stop and search at sea a neutral bottom, and may take out goods, which are contraband of war, without giving cause of offence, or being supposed in any degree to infringe neutral rights. But this practice could not be permitted within the rivers, harbours or other places of a neutral, where its sovereignty was complete. It follows then that the full right of affording protection to all property whatever, within its own territory, which is inherent in every government, is not transferred to a vessel navigating the high seas. The right of a belligerent over the goods of his enemy within his reach, is as complete, as his right over contraband of war, and it seems a position not easily to be refuted, that a situation that will not protect the one, will not protect the other. A neutral bottom then does not of right, in cases where no compact exists protect from his enemy the goods of a belligerent power.
To this reasoning, the practice of nations has conformed; and the common understanding of mankind seems to have assented. Vattel, B. 3. Sect. 115, says positively, "that effects belonging to an enemy, found on board a neutral ship are seizable by the rights of war."
Vattel is believed to be supported by the most approved writers on the same subject. It is deemed unnecessary to multiply citations to this point; because France herself is supposed to have decided it. In her maritime ordinance of the year 1744, which is considered as having been in force in 1778, enemy goods in neutral bottoms, generally, are declared liable to seizure and confiscation. From the operation of this rule are excepted the vessels of Denmark, and the United Provinces, to whom special treaties secured the exception. In the ordinance of the 26th of July, 1778, the first article of which is considered as forbidding the cruisers of France to stop and bring into port neutral vessels, having on board the goods of an enemy, a power is reserved to revoke the privilege granted to neutrals by that article, if the enemy should not grant the same privilege within six months from the publication of that regulation. This clearly indicates a conviction that the exemption from the capture of the goods of an enemy which should be found on board the vessel of a neutral power, not having stipulated such exemption by treaty, was a privilege granted by the ordinance and that the mere revocation of the ordinance would abolish the privilege, & restore the ancient rule. It will not be contended that France continued in a long course of practice and of le-
gislation opposed to her own opinion of the law of nations. It must then be considered as the opinion of France, that under the law neutral bottoms afford no protection to the goods of an enemy. This principle thus admitted to have been established, is supposed by some to have been changed by the armed neutrality. A new law of nations, it is contended, was introduced, by that confederation. But who were the parties to that federation, and what was its object? The northern maritime powers united to protect by force, in their own bottoms, during the then existing war, the goods of either and of all the belligerent powers. The compact in its own nature was confined with respect to its object and its duration. It did not purport to change nor could it change permanently and universally the rights of nations not becoming parties to it. It did indeed hold forth the promise of future more permanent and more general engagements for the same object, but such engagements were never formed. How then can this temporary and partial convention be considered as altering, radically and generally, principles which have been universally adopted, and in the modifications of which all have an interest? Would France herself admit that a combination, such as that which constituted the armed neutrality, may rightfully change the law of nations, and establish a new code of universal obligation? It is believed that no nation on earth would more perseveringly oppose such an invasion of its sovereignty.
There seems then to be no solid ground for maintaining, that the general law of nations has been at all varied by the armed neutrality.
It remains to inquire whether the treaties between France and the United States, pledge either nation to assert and establish the principle, that free bottoms make free goods.
The treaty of amity and commerce, concluded the 6th February, 1778, stipulates reciprocally for the right of trading with and protecting the goods of the enemy of either party in the vessels of the other, and in turn surrenders its own goods found in the vessels of an enemy, but it contains no clause imposing on either party the duty of extending the principle or of supporting its application to other nations. The stipulations of that treaty are negative as well as affirmative. They specify as well the disabilities intended to be created, and the duties to be imposed as the privileges designed to be granted. Had it been intended that either nation should have been bound to maintain this principle in its intercourse with others, or should have been in any degree incapacitated from prosecuting freely that intercourse, without the previous admission of the principle, a stipulation to that effect would have been made. No such stipulation having been made, the parties cannot be presumed to have intended it. Indeed it would have been madness in the United States, under their actual circumstances, to have formed such an agreement. There being no express stipulation to this effect, it cannot be supposed to have been implied. Nations forming a solemn compact which ought to regulate their conduct towards each other, which is to be resorted to for the standard of adjusting their differences, do not leave to implication such delicate and important points. Indeed if a great principle not mentioned is permitted to be implied, the object of a written agreement, which is itself to evidence all the obligation it creates, is totally defeated. But who is to make the implication, and to what extent is implication to be
allowed? It is very easy to perceive, that the doctrine of implying in contracts stipulations never formed, would destroy all certainty of construction, and open a boundless field of controversy to the contracting parties.
It results from the very nature of a contract which affects the rights of the parties, but not of others, and from the admission of a general rule of action, binding independent of compact, which may be changed by consent, but is only changed so far as that consent is actually given, that a treaty between any two nations must leave to all others those rights which the law of nations acknowledges; and must leave each of the contracting parties subject to the operation of those rights. For the truth of this position, believed to be so clear in itself, and which it is supposed the history of all Europe will illustrate, the ordinance of 1744, already quoted is considered as furnishing an unequivocal authority. By that ordinance the law of nations is applied to all those neutrals with whom France had not stipulated, that the quality of their bottoms should be imparted to their cargoes, while those with whom such stipulations had been made are exempted from the application of the law.
The desire of establishing universally the principle that neutral bottoms shall make neutral goods, is perhaps felt by no nation on earth, more strongly than by the United States. Perhaps no nation is more deeply interested in its establishment. It is an object they keep in view, and if not forced by violence to abandon, they will pursue in such manner as their own judgment may dictate as being best calculated to attain it; but the wish to establish a principle is essentially different from a determination that it is already established. The interests of the United States could not fail to produce the wish, their duty forbid them to indulge it, when deciding on a mere right. However solicitous America might be to pursue all proper means, tending to obtain for this principle the assent of all or any of the maritime powers of Europe, she never conceived the idea of that consent by force.
The United States will only arm to defend their own rights, neither their policy nor their interests permit them to arm, in order to compel a surrender of the rights of others. These and other considerations, which have been submitted to the government of France, produced on the part of the United States, a decision, that their bottoms could not of right protect the goods of a belligerent power from an enemy not bound to respect the principle. This decision was founded on the most perfect conviction that it was enjoined by the law of nations, and that good faith, respect for truth, and for the duties of an upright and honest judgment, rendered it indispensable. This conviction remains unshaken. If these arguments, which still appear conclusive to the American government, have not the same operation on the judgment of France, they must at least be sufficient to evince the sincerity with which that government has acted, and to prove that its conduct in this respect, was produced by a sense of duty, and not by any partiality for a nation against which it was, at that time, considerably irritated by other causes.
The undersigned, citizen minister, rely too implicitly on your candor and discernment, to apprehend that you will estimate improperly the motives which on this essential point have influenced and guided the United States.
The early decision of the American government on this subject was immediately openly avowed, and amply sup-

ported by Mr. Jefferson, the then Secretary of State, in his letter to Mr. Genet, dated the 25th July, 1793; and in his letter to Morris, dated 16th August in the same year. The arguments which these letters contain, were supposed to have satisfied the government of France, since its ministers in the United States no longer controverted the principle they supposed. Indeed these arguments appeared too conclusive to permit a doubt concerning the success which would attend them.
In August 1794, when Mr. Monroe, the then minister of the United States to this republic, was received into the bosom of the convention, France obviously did not consider the acknowledgement of this established principle of the law of nations, as indicating a partiality towards her enemy. The language used on the occasion could only have been used to the minister of a nation whose friendship was valued, and whose conduct had evinced the sincerity of its professions. It was then declared "that the sweetest, the frankest fraternity united in effect the two republics," and that "their union would be forever indissoluble." These declarations made long after America had avowed its neutrality, and had avowed its acquiescence under the principle that a belligerent power, and unrestrained by a particular treaty, may of right take out of the bottoms of a neutral, the goods of its enemy, demonstrate that neither that neutrality nor that acquiescence induced the want of a proper regard for France. The government of the United States still cherishes the hope, that this true and fair estimate then made of its conduct, may be soon resumed by a nation whose friendship it has insidiously and unremittingly cultivated, by all those means which good faith and justice could permit it to use.
After the discussion of this interesting question was supposed to have been closed, and France was believed to have been entirely content with that system in which the United States found themselves bound to persevere, some complaints were made, not against the principles adopted by the government, but against the application of those principles to particular cases supposed not to come within them. The neutrality of the United States could not permit prize to be made of those vessels belonging to nations with whom they were at peace, within their jurisdiction, or by privateers fitted out in their own ports. Regulations to this effect were necessarily made, & to enforce the observance of those regulations was a duty not to be dispensed with. The right of one of the belligerent powers, to obtain the release of a vessel captured under such circumstances was as sacred as the right of the captor to a vessel taken on the high seas and which according to the usages of war was lawful prize. The United States were bound to respect the rights of both. To do so, it was necessary to examine the facts; for which purpose, a Tribunal, in which both parties might be fairly heard, was unavoidable. Some complaints were made of particular vexations, and each complaint has heretofore been particularly attended to. It is believed to be unnecessary to review these several cases, because the undersigned are entirely persuaded that explanations already given must have been completely satisfactory. Should any one of them be still considered as furnishing subject for complaint, the undersigned will proceed to its investigation, with the most sincere desire to attain truth, and to redress the wrong, if any has been committed.
During this period, the causes of complaint against France, on the part of the United States, were by no means inconsiderable. Their commerce was not to exempt from depredations, believed to be entirely unwarrantable, made upon it by the cruisers of this republic.
On the 9th May, 1793, the national convention passed a decree relative to the commerce of neutrals, the first article of which is in these words, "The French ships of war and privateers may stop and bring into the ports of the republic such neutral vessels as are loaded, in whole or in part, either with provisions belonging to neutrals, and destined for enemy ports, or with merchandise belonging to enemies." In consequence of the remonstrances of the American minister, the convention, on the 23d May, declared "that the vessels of the United States are not comprised in the regulations of the decree of the 9th May." On the 28th of the same month the convention repealed the decree of the 23d—On the 1st July they re-established it. On the 27th July it was again repealed. Under the decree of the 9th May, the vessels of the United States were captured, brought into the ports of France, and their cargoes disposed of. Could this decree, citizen minister, be regarded otherwise than as infringing the laws of nations, the rights of neutrals, and the particular engagements, subsisting between France and the United States?
When on the 8th June in the same year, the British government issued a similar order, its injustice produced a ferment throughout America indicating strong dispositions immediately to oppose its execution by force. The letter of Mr. Jefferson, the then Secretary of State, to the Minister Plenipotentiary of the U. States at London, dated the 7th September, 1793, and remonstrating against the order of the 5th June, contains so much justness of sentiment and strength of argument, as to have been quoted by your predecessor, in his letter to Mr. Monroe of the 9th March 1796.
It cannot escape you, citizen minister, that the arguments of Mr. Jefferson, concerning the order of the 8th June, apply conclusively to the decree of the 9th May; and that to them are to be added those arguments which are to
be drawn from the hardship of being absolutely compelled, without any alternative, to part with the cargoes in France, and those also which are drawn from the duties imposed by an express and solemn treaty.
Nothing can demonstrate more conclusively the real temper of the United States, than the difference between the reception given to the decree of the convention of 9th May, and that which was given to the order of the British cabinet on the 8th June.
A large number of American vessels too, were for a long time detained at Bourdeaux, very much to the injury of the owners, without assigning a motive for such detention, or putting it in the power of the government to conjecture the cause of a measure which so deeply affected the interest of their fellow citizens—These and other embarrassments were experienced, but they could not diminish the attachment of the United States to France. In the midst of them, prayers were offered up, through the whole extent of the American continent, for the success of this republic. The government feeling the same sentiment, displayed it, at least as far as was compatible with the decent deportment required from a nation not a party in the war, and professing neutrality.—Such would not have been the conduct of a government and people in secret unfriendly to France.
Very strong and just resentments were at that time inspired by the hostile conduct of Britain. The introductions of June 1793, whereby the American vessels laden with provisions for France, were brought into the ports of Britain, there to sell such cargoes, or to give security to sell them in other ports in amity with England, and the still more offensive order of Nov. the 6th, in the same year, whereby vessels laden with the produce of a French colony were ordered to be brought in for adjudication, added to the pre-existing causes of mutual irritation, had produced such a state of things as to render it obvious that the injuries complained of by America must be entirely done away, or that war was the inevitable consequence.
This state of things was not so altered by the order of the 8th of January, 1794, revoking that of the 6th of November, 1793, as to promise a different result. But as a nation preferring peace to war will ever make a peaceful demand of reparation for injuries sustained before that reparation is sought by the sword, and the policy of America has ever been "to pursue with unremitting zeal before the last resource which has so often been the scourge of nations, and could not fail to check the advanced prosperity of the United States was contemplated," an Envoy Extraordinary was deputed to his Britannic Majesty. "Carrying with him a full knowledge of the existing temper and sensibility of his country, it was expected that he would vindicate its rights with firmness and cultivate peace with sincerity."
Truly desirous as the American government were of preserving peace with Britain, its determination was unalterable, not to preserve it, nor to receive compensation for injuries sustained, nor security against their future commission, at the expense of the smallest of its engagements to France. Explicit and positive instructions were freely communicated to the minister of this Republic then at Philadelphia. The negotiation of the American Envoy terminated in a treaty in many respects desirable to the United States.
But however desirable its objects might be, the Government of the United States would not have hesitated to reject them had they been accompanied with any stipulation violating or weakening its engagements with France. But it has been able to discern no such stipulation. The twenty fifth article of that treaty guards the rights of this republic by the following clause. "Nothing in this treaty contained shall, however, be construed to operate contrary to former and existing public treaties with other sovereigns or states." The treaty with France being "a former and existing public treaty," and it being thus provided that nothing contained in the treaty with Britain "should be construed to operate contrary to it," the Government of the United States did not apprehend that the treaty with Britain could be considered as affecting its relations to France. But such was its attention to its ally that the instrument was previous to its ratification submitted to the consideration of the Minister of this Republic, who was invited to communicate freely to the United States, such observations upon it as he might judge proper. Mr. Adet in a letter addressed to Mr. Randolph, dated 12th Messidor 3d year of the French Republic (30th June 1795) expresses his sense of this procedure in the following words: "This frank measure is to me a sure guaranty of the friendship of the American government towards France, and of the fidelity with which it always marks its conduct towards a faithful ally." He then stated those reflections to which the reading of the treaty had given birth. The articles which relate to enemy goods in neutral bottoms, are mentioned without a comment. He contended that the list of contraband was swelled, and that the 23d, 24th and 25th articles of the treaty with Britain, ceded to that power advantages inconsistent with the previous cessions to France. This letter was answered by Mr. Randolph on the 6th of July following, who proves that no article was enumerated in the list of contraband, in the treaty between the United States and Great Britain, which was not of that description previous to the formation, and independent of it, noticed briefly the subject of enemy goods in neutral bottoms, and demonstrated that the objections of Mr. Adet
to the 23d, 24th and 25th articles were entirely founded on a misconstruction of them.—This misconstruction was so apparent, that Britain has never claimed it nor would the American government ever have admitted it. The letter of Mr. Randolph closes the subject of enemy contraband and of enemy property taken out of neutral bottoms, with a paragraph to which citizen minister, your attention is solicited, "Hitherto however (says he) I have spoken upon principles of right. Upon any other principles, and more especially upon those of hardship and injury to a friend, it shall be a topic of the negotiation now opening between us. With the temper which will pervade the whole of it, I cannot doubt, that some modification may be devised, and it may be separated from the general treaty so as not to be delayed by it."
It was then apparent that the government of the United States, actuated by that friendship which transcends the line of strict obligation, was willing gratuitously to release her ally from those stipulations of a former treaty, which in the course of events were deemed to operate unfavourably to her. This readiness to concede marked that friendship the more strongly, as the situations in which the two nations found themselves could not have been unforeseen, but was the very situation for which the article provides. (To be continued.)
Display of American Spirit!
NOBLE ADDRESS Of the Militia Officers of New-Jersey, TO THE President of the United States.
SIR, THE Commander in Chief, the General Officers, the General Staff and Field Officers of the Militia of the State of New Jersey, feel, in common with their numerous fellow citizens, who have addressed you in the present critical situation of our nation, and most cordially join them in expressing to you their high approbation of your conduct in the management of its foreign concerns, and their indignation for the insult offered to the honor and independence of the American People.
We come not, sir, to dictate—Whether peace can be preserved with the safety of our national dignity, or whether an appeal is to be made to arms, are questions entrusted to those in whose patriotism we confide, and according to their decision we shall always be prepared to act.—But, sir, at this eventful period we deem it our duty, and feel it a pleasure, respectfully to approach our Commander in Chief, and to make him a solemn proffer of our lives and fortunes in the service of our country.
It is not, sir, for soldiers to boast; but we know the troops whom we have the honor to command; we have been eye witnesses to their ardent zeal in the cause of freedom; we have been their companions in many toils and many sufferings, and if our beloved country calls we shall again cast the eye of confidence along their embattled ranks.
Let our enemies flatter themselves that we are a divided people.—In New Jersey, sir, with the exception of a few degraded and a few deluded characters, to whose persons and to whose services the invading foe shall be welcome, from the moment of their arrival, and whom we engage to convey in safety to their lines.—In New Jersey, sir, there is but ONE VOICE, and that is the voice of confidence in the Federal Government. The voice of perfect satisfaction with your administration of it; and the voice of firmness and determination to support the laws and constitution; the honor and dignity of the United States; and, sir, for the defence of these, we do this day, in the presence of the God of armies, and in firm reliance on his protection, solemnly pledge to you, our lives, our fortunes, and our sacred honour.
ADDRESS, From the Students of Harvard University, TO THE President of the United States.
SIR, WE flatter ourselves you will not be displeased at hearing that the walls of your native seminary are now inhabited by youth possessing sentiments congenial with your own. We do not pretend to great political sagacity; we wish only to convince mankind that we inherit the intrepid spirit of our ancestors,
and disdain submission to the will of a rapacious, lawless, and imperious nation. Though removed from active life, we have watched with anxiety the interest of our country: We have seen a nation in Europe, grasping at universal conquest, trampling on the laws of God and nations, systematizing rapine and plunder, destroying foreign governments by the strength of her arms, or the pestilence of her embraces, & scattering principles which subvert social order, raise the storms of domestic faction, and perpetuate the horrors of revolution: We have seen this same nation violating our neutral rights, spurning our pacific proposals, her piratical citizens sweeping our ships from the seas, and venal presses under her controul, pouring out torrents of abuse on men who have grown grey in our service: We have seen her ministers in this country insulting our government by a daring, unprecedented, and contemptuous appeal to the people, and her agents at home offering conditions, which slaves, whose necks have grown to the yoke, would reject with indignation. We have seen this, sir, & our youthful blood has boiled within us. When, in opposition to such conduct, we contemplate the measures of our own government, we cannot but admire and venerate the unfullied integrity, the decisive prudence and dignified firmness, which have uniformly characterized your administration. Impressed with these sentiments, we now solemnly offer the unwasted ardor and unimpaired energies of our youth to the service of our country. Our lives are our only property; and we were not the sons of those who sealed our liberties with their blood, if we would not defend with these lives that soil, which now affords a peaceful grave to the mouldering bones of our forefathers.
ADDRESS From the Citizens of Berwick (Maine.) TO THE President of the United States.
SIR, AS the present is an alarming crisis in our public affairs, we the subscribers, inhabitants of the town of Berwick, bound by every tie of national and individual happiness, are anxious to express our highest approbation of your wise administration, and of the unceasing exertions of our Executive to preserve us from the broils and contentions of Europe.
While with pleasure we view the conduct of our government in attempting to bring to an amicable negotiation the existing differences between the United States and the French nation; we see with contempt & indignation, their base and sordid conduct in their professed terms of negotiation.
As the terms of peace and friendship, they demand of us our dearest rights, liberty and independence; but as the heirs of American freedom, we yet hope to find an asylum in our constitution and government; and that the firm and dignified resistance of any encroachments upon them by their enemies, will be such as to convince Europe and the world, that we will support and defend them with our lives and our property.
Let the fate of Holland, groaning under its enormous contributions, and the annihilation of the Republic of Venice and of the Venetian name, be as land marks of the baneful effects of foreign influence, and corruption, and guard us against the rapid strides of those too contagious evils.
But however arbitrary and unjustifiable their conduct may be towards us, if, with sincere and patriotic hearts, with one heart and one mind, we give liberal and firm support to the constituted authorities of our government, we shall under the protection of heaven be able to convince that haughty nation that we are not that divided, distracted people we have been represented, but that we are linked together by one common interest in defence of our constitution, liberty and independence.
* France.

MEMORIAL of the AMERICAN ENVOYS to the FRENCH GOVERNMENT.
(CONCLUDED FROM THE LAST GAZETTE.)
THE answer of Mr Randolph concludes with re-questing an opportunity to remove any remaining doubts, should there be such; by further explanation; no re-main doubts were stated, and therefore as well for its contents, the letter was believed to be entirely fa-tisfactory to Mr Adet, & it was hoped that this govern-ment as well as that of America would consider the treaty with Britain as an accommodation desirable by the U-nited States and not disadvantageous to France.
It is not easy to express the chagrin felt by the A-merican government on learning that in this treaty the United States were supposed to have "knowingly and evidently sacrificed their connection with this repub-lic and the most essential and least contested prerogatives of neutrality." With the firmness of conscious integrity the United States aver that they have never knowingly sacrificed or impaired their connections with this repub-lic nor the prerogatives of neutrality, but that they have according to their best judgment, invariably sought to preserve both.
The underlined will endeavor faithfully to state the impressions of the government they represent on this interesting subject. The objections made to this treaty by your predecessor in office in his note to Mr Monroe, dated 10th Ventose 4th year of the French republic one and indivisible (9th March '96) are :
1st. That the United States, besides having departed from the principles established by the armed neutrality have given to England, to the detriment of their first al-lies, the most striking mark of an unbounded condescen-dion, by abandoning the limits given to contraband by the law of nations, by their treaties with all other na-tions & even by those of England with the greater part of the maritime powers.
2d. That they have consented to extend the denomi-nation of contraband even to provisions. Instead of pointing out particularly as all treaties do, the cases of the effective blockade of a place, as alone forming an exception to the freedom of this article they have tacitly acknowledged the pretensions raised by England to cre-ate blockades in the colonies, and even in France, by the force of a bare proclamation.
Mr Adet in his letter to Mr Pickering dated Brumaire 4th year of the French republic one and indivisible (15th Nov. 1796) has repeated the same objection, and has been pleased to superadd some observations relative to the formation of such a treaty generally, and the circum-stances attending its negotiation, in terms not to have been expected by the first and almost [only] voluntary friends of the republic.
These having been the only specific objections officially made to the Treaty with Britain by the government of France either in Paris or Philadelphia, are necessarily supposed to be the only objections which have occurred.
They have often been discussed on the part of the United States, but that discussion will be renewed be-cause although the underlined may be unable to suggest any argument not heretofore used, they cannot resist the hope that an attentive reconsideration of those arguments may give them a success that has not yet attended them.
The first objection may be supposed to consist of two parts. First the abandonment of the principle that neu-tral bottoms make neutral goods, an objection rather insinuated than expressed, and secondly the addition to the catalogue of contraband.
1st. On the first part of the objection it is observable that the statement of late minister of exterior relations, and of Mr Adet, seem to admit, but certainly do not controvert the position that previous to the formation of the armed neutrality, a belligerent power could right-fully take out of the bottoms of a neutral the goods of its enemy. This position is believed to be uncontro-vertable; some of the arguments in support of it have been already detailed, and it is deemed unnecessary to repeat or to add to them. To this principle of the armed neutrality, with a departure from which the United States seem to imply charged, the note of Mr De la Croix does not assign any obligation whatever; nor does he appear to consider it as having been engraven by that confederation on the law of nations. On this point Mr Adet has not been more explicit. He seems to have been content with vague insinuations, and not to have been willing to commit himself by a direct averment that in consequence of the armed neutrality the law of na-tions on this subject is changed. The underlined are unwilling to combat at length a proposition not positively advanced, which they deem so clearly indefensible, and will therefore refer to the brief observation already made respecting it.
It may not, however be improper here to notice that in February 1778, when the treaty between France and the United States was entered into, the armed neutrality had not been formed; of consequence the state of things on which that treaty operated was regulated by the law of nations, as it clearly existed previous to the for-mation of the armed neutrality. It is supposed to be ad-mitted that according to that state of things, neutral bottoms could afford no protection to the goods of an enemy. The stipulation then of the article of that treaty was understood at the time by the contracting parties to form an exception to a general rule; which would re-tain its obligation in all cases where it was not changed —If then the contracting parties had designed to impose on each other the necessity of extending this exception to other nations, so as to convert it into a general rule, they would have expressed this intention in their con-tract; not having expressed it they must be considered as intending that this exception should form a rule as between themselves, while the general rule should gov-ern as with other nations who had not consented to change it.
It is also worthy of observation that when this treaty was made, the United States were at war, and France at peace with Britain. In this state of things, which might have continued had not war been declared or hos-tilities commenced by England, the bottoms of France would have protected from American cruisers, English property, while they would not have protected from British cruisers, American property. This was the ne-cessary result of that state of things under which the treaty was formed; America had consented to it and neither could or would have complained.
It is also to be noticed that before the negotiation with England had commenced, the government of the United States had openly avowed that opinion on this subject, which its best judgment dictated. This opinion perfectly unconnected with that negotiation, was known by all to form and regulate the basis of its conduct. The letters from Mr Jefferson already quoted had stated to the world the perfect conviction of the United States that by the law of nations a belligerent power, not re-strained by particular treaty might rightfully take out of the bottoms of a neutral the goods of its enemy, as well as their determination that they could not & ought not to oppose the exercise of this right. The right hav-ing been clearly and unavoidably admitted, and the de-termination to acquiesce under its exercise having been avowed openly, Mr Jay could only solicit its surrender. Had no treaty been formed, or had that treaty omitted to mention the principle, the right would still have ex-isted, would still have been acknowledged, and would still have been exercised. The treaty does not, in fact or in expression, cede a new privilege; it regulates the exercise of one before existing and before acknowledged to exist. The means of exercising this right which are given by the law of nations, are modified and soft-ened by the treaty, & this is the only effect which the
article on this subject has produced. It was the only motive and it was a sufficient motive for introducing it. The second branch of this objection seems more to be relied on and comes forward in a more decisive shape; it is—that the United States have abandoned the limit given to contraband by the law of nations, by their treaties with all other nations, and even those of England with a greater part of the maritime powers.
The limit of contraband is supposed to have been extended by inserting in the catalogue naval stores and timber for ship building.
To estimate rightly a charge so warmly made, it be-comes indispensable to ascertain whether those articles are independent of treaty, by the law of nations contra-band of war; on this single point seems to rest the verity of the accusation.
It is regretted that those who have averred the neg-ative have not been pleased to furnish authorities in sup-port of the opinion they advance. Such authorities would have been considered with candor, and any con-viction they might have produced would have been freely acknowledged. But no such authorities are fur-nished, and it is believed that none exist.
America, solicitous to confine as much as possible by common consent the list of contraband; but determined however she might oppose its enlargement not to at-tempt its diminution by force, was under the necessity of examining the subject and of ascertaining the line of partition between the rights of neutrals & of belligerent powers.
As guides in such a search, she should only take the most approved writers on the law of nations. These are believed to class timber for ship building and naval stores for the equipment of vessels, among articles ad-mitted to be contraband of war. Vattel (B. 7. sec. 112) defines contraband goods to be "commodities particu-larly used in war; such are arms, military and naval stores, timber, horses, and even provisions in certain junctures, where there are hopes of reducing the enemy by famine." The treaty between France and Denmark, concluded in 1742, places tar, rosin, sails, hemp, cordage, masts and timber for ship building on the catalogue of contraband; and Valin in his commentary on the maritime ordinances of France (vol. 2. p. 264) says that 'of right these articles are now contraband, and have been so from the commencement of the present century.' In conformity with these opinions has been that of A-merica; and if the law of nations was understood by the most approved jurists, she has not erred.
But the modern public law of nations, and modern treaties are said to have established a different rule. If the modern public law of nations has changed the prin-ciple, such change is yet unknown to the United States—It is much to be wished that more full and satisfactory information had been given in support of an opinion a difference on which is alleged to have produced conse-quences so essentially calamitous.
It is not averred that the armed neutrality has consti-tuted this modern public law. It is supposed that this cannot be averred because France will never admit the right of a confederacy, whatever may be its power to oppose the law of those who are not parties to it. It is supposed also that this cannot be averred for another reason. The members of the armed neutrality had not themselves agreed upon the articles which should be deemed contraband. Russia, the power originating that celebrated, tho' short lived compact published in 1780, the principles on which the world maintain the com-merce of her subjects: one of these was that the articles of contraband should be regulated by the 10th and 11th articles of her treaty of commerce with Great Britain.
Afterwards Denmark entered into a convention with Russia for maintaining generally the principles agreed upon, but on the subject of contraband in particular, Denmark adopted as the rule by which to be governed, her treaty of commerce with Great Britain concluded the 10th of July 1670, in the 3d article of which contra-band goods are described to be "ANY PROVISIONS OF WAR, as soldiers arms, machines, cannon, ships, or other things of necessary use in war." But by a convention concluded at London on the 4th of July, 1780, between Great Britain and Denmark, to explain the treaty of commerce of 1670 between the two powers. "Timber for ship building, tar, rosin, copper in sheets, sails, hemp and cordage, and generally whatever serves directly for the equipment of a vessel, unwrought iron and fir planks excepted," are declared to be contraband.
Denmark having in her convention with Russia, adopt-ed her treaty with England made in 1670, as declaratory of those articles which she would consider as contraband, and having by her explanatory agreements with Eng-land substituted a particular enumeration of articles for a general description of them, not as an amendment, but as an explanation of the treaty of 1670 has taken a different rule, in the very compact referred to as estab-lishing a modern public law of nations, from that taken by Russia. The rule of Denmark classifies among contra-band precisely the same articles which are enumerated as such in the treaty between the United States and Britain, and which are only found in that enumeration, because it is believed that the law of nations has unques-tionably placed them. Sweden and Holland too, in ac-ceding to the armed neutrality, adopt their own trea-ties as the rule by which they will respectively be guid-ed—There was then even among the parties to this a-greement no fixed law of contraband. Had the Pote-tates of Europe designed to establish permanently and generally all the principles of the armed neutrality, the war which originated that Convention, would not have terminated without some general agreement concerning it: The efforts of Sweden to obtain a Congress for ex-amining and terminating the different concerns both of the powers at war and of the neutral States could not have proved entirely abortive.
No argument then can be drawn from the armed neu-trality in support of the position, that the modern pub-lic law of nations, relating to contraband has been aban-doned by the United States. No modern public law having been formed the rule remains unchanged; and at the present moment as well as when the treaty with France was formed, is believed to ordain as contraband the articles enumerated as such in the treaty with Bri-tain.
But it is alleged that in this treaty the United States have abandoned the limits given to contraband by their treaties with all other nations and even by those of England with a greater part of the maritime powers.
It is true that the United States desirous of liberating commerce, have invariably seized every opportunity which presented itself to diminish or remove the shackles imposed on that of neutrals. In pursuance of this poli-cy, they have on no occasion hesitated to reduce the list of contraband, as between themselves and any other nation consenting to such reduction. Their pre-exist-ing treaties have been with nations as willing as them-selves to change the old rule; and consequently a dispu-tation that that effect being desired by both parties, has been made without difficulty. Each contracting party is deemed to have an equivalent for the cession made in the similar cession it receives from the party with whom it contracts. Neither requires of the other as an ad-ditional consideration that it shall propagate by the for-word the principles which form the basis of their pri-vate agreements and force unwilling nations to adopt them: Nor that it should decline to regulate by treaty its interests with any other nation which should refuse to accede to them; as little could either suppose that its particular contract contained any thing obligatory on others, or was capable of enlarging or diminishing their rights. The treaties of the United States then with other nations can only establish the limits of contraband, as between the contracting parties, and must leave that subject with nations not parties to the contract to the law which would have governed had such particular
disputation never been made.
According to the existing state of things when the ne-gotiations between the United States and Great Britain were opened, naval stores and timber for ship building, were as between America and Britain contraband of war; they would have retained this character had the treaty never been made; they would have retained it had the treaty contained no provision on the subject—The United States were truly desirous of excluding them from the list, but Britain was unwilling to do so.
Had the United States possessed the means of coer-cion, their established policy founded on the basis of Jus-tice, and their own peculiar situation, forbid a resort to those means for any other purpose than the defence of their own rights, or a compliance with their own en-gagements. It was not a case in which force would have been deemed justifiable; and the object, being unattainable by mutual consent, was unavoidably relinqu-ished for the moment. Yet it was proper to enume-erate the articles which were before contraband, and which continued to be so, because that enumeration no-tified to the merchants of the United States the hazard which their commodities would encounter on the seas, and because also it prevents those vexatious alterations which might otherwise have produced by the efforts of one party to swell, and of the other to reduce the list.
If on the refusal of Britain to substitute any other rule concerning contraband, in the place of that estab-lished by the law of nations, France finds herself in a situation to be injured by an observance of her engage-ments with the United States, it is not the treaty with Britain, but that with France which has produced this situation. This was foreseen when that treaty was en-tered into, and did not prevent it.
The stipulation concerning contraband was formed when France was at peace and America at war, altho' that state of things did not long continue, yet its contin-uance was by no means deemed impossible. Notwith-standing this, the government of the United States has manifested a willingness to change this stipulation as well as that which respects enemies property, in neutral bottoms, so soon as France complained of them; of this the letter from Mr Randolph to Mr Adet already quo-ted affords conclusive testimony.
It appears then on examining this objection to the treaty between the United States and Britain, that it has not added to the catalogue of contraband a single article; that it has ceded no privilege, has granted no right, and that it has not changed in the most minute circumstance the pre existing situation of the United States in relation either to France or to Great Britain—Notwithstanding these truths, the government of the U. S. has hastened to assure its former friend that, if the stipulations between them be found oppressive in practice, it is ready to offer up these stipulations a wil-ling sacrifice at the shrine of friendship.
In vain will you search in this procedure for "a known and evident sacrifice on the part of the U. S. to the States of their connections with this republic and of the most essential and least contested prerogatives of neu-trality." In vain will you search for evidence of their "having given to England, to the detriment of their first allies, the most striking mark of unbounded condescen-dion, by abandoning the limits given to contraband by the law of nations, by their treaties with all other nations, and even by those of England with the greater part of the maritime powers."
The United States feel these reproaches as conscious innocence feels the imputation of guilt.
SECONDLY. It is also alleged, that "the United States have consented to extend the denomination of contraband even to provisions. Instead of pointing out particularly, as all treaties do, the cases of the effective blockade of a place, as alone forming an exception to the freedom of this article, they have tacitly acknow-ledged the pretensions raised by England to create block-ades in our colonies, and even in France, by the force of a bare proclamation."
The objections to this article shall be considered ac-cording to its letter, and according to its operations.
The objectionable words are, "and whereas the dif-ficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to pro-vide against the inconveniences and misunderstandings which might thence arise. It is further agreed that whenever any such article, so becoming contraband ac-cording to the existing laws of nations, shall for that reason be seized, the same shall not be confiscated; but the owners thereof shall be speedily and completely in-demnified; and the captors, or, in their default, the government under whose authority they act shall pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight and also the demur-rage incident to such detention."
The admissions contained in this case are, First, That provisions are not generally contraband, and that
SECONDLY. They are sometimes contraband.
An effort was made to establish the precise cases in which alone they should be subject to seizure; but A-merica would only consent to consider them as contra-band in the case of an effective blockade, siege, or in-vestment of a place; while on the part of England this strict interpretation of the rule was not admitted: but it was contended that provisions became contraband when there were reasonable hopes of reducing the ene-my by famine. In this opposition of sentiment to what have the United States consented? "To extend the de-nomination of contraband even to provisions." "To ac-knowledge tacitly the pretensions raised by England to create blockades in your colonies, and even in France, by the force of a bare proclamation?" "In a word to have commerce only with England?" Reconsider the words themselves and it will require no comment to prove how inapplicable to them are these assertions.—The cause complained of having stated the admission of the difficulty already mentioned, proceeds to say it is further agreed that whenever any such articles, so be-coming contraband according to the laws of nations shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified."
It is too clear to admit of contestation that this clause does not declare provisions to be contraband, or admit of their seizure in any other case than when, "according to the existing law of nations they should become contra-band;" in such case the right to seize them is not given by this article, but it is admitted by France and by the all world to exist independent of treaty. In such case they would have been seized had this dispu-tation never been entered into; and would have been confiscated also.
The only alteration, which is by the letter of the clause produced in the law of nations, is to exempt from confiscation goods which under that law would have been subject to it.
But it has been suspected to have an object and an operation in practice different from its letter.
It has been suspected to cover a design to admit sub-stantially certain principles with respect to blockades which in theory are denied.
Incapable of duplicity, America with the pride of conscious integrity, repels this insinuation, and courts an investigation on the facts on which it is founded.
The government of the United States and that of Britain having construed the law of nations differently in this respect, each would have acted upon its own op-inion of that law: The privateers of England would have seized as contraband any goods deemed such in the courts of admiralty; and the government of the United States would have reclaimed such goods, and would have
supported the demand in such a manner as its own judg-ment dictated. This procedure is not changed. The right to make such reclamations has not been relinquish-ed, nor has the legality of the seizure in any other case than that of an attempt to enter a place actually invest-ed been in any degree admitted.
It is true, that the British government renewed the order concerning provisions about the time of the ratification of the treaty; but it is not less true, that the government of the United States, manifested a firm resolution to submit to no such construction, and remon-strated so seriously against it as to produce a revocation of the order. Nor is this all: claims for provisions seized in cases of a mere proclamation blockade have been actually made, and have been actually decided in favour of the claimants. The British government has acquiesced under such decisions by paying the sums a-warded. These sums were not limited to a reasonable profit on the price of the commodity seized, but were regulated by its price at the port of destination, and consequently the actual as well as avowed principle of such decisions was, that the goods seized had not be-come contraband "according to the existing law of nations."
The intention of the government then, and the prac-tice under the article, are in direct opposition to these injurious suspicions, the indulgence of which has pro-duced such pernicious effects. It is even believed, that the decision on this subject will be one step towards the establishment of that principle for which America has never ceased to contend. It is also believed, and has ever been believed, that the article objected to would have a necessary tendency to increase the quantity of provisions imported from America into France and her colonies. The American commerce, being entirely in the hands of individuals, is consequently conducted by them according to their own views of particular advan-tage, they will unquestionably endeavour to supply the highest market, unless restrained from doing so by oth-er considerations, which render it inadvisable to at-tempt such a supply. On their calculation, the risk of reducing the market is too important an item to be pas-sed over or forgotten. Every diminution of this risk adds to the number of those who will attempt the sup-ply; and consequently a knowledge that the voyage, should it even fail by the seizure of the vessel, would yet be profitable, must increase the number of those who would make it.
It is plain then that this article admits the seizure of provisions in no situation where they were "not before seized: and encourage their transportation to France and her colonies, by diminishing the risk of such trans-portion."
It is also complained of, that this treaty has not, "as all treaties do, pointed out particularly the cases of the effective blockade of a place," as "alone forming an ex-ception to the freedom of provisions."
Articles in a treaty can only be inserted by consent. The U. S. therefore can never be responsible for not having inserted an article to which the other contract-ing party would not assent. They may refuse to make any change in the existing state of things prejudicial to themselves or to other powers; and they have refused to make any such change. But it is not in their power to insert, as by common consent, an article though mere-ly declaratory of a principle which they considered as certainly existing, and which they mean to support if such common consent be unattainable. All that can be done in such a case, is to leave the principle unimpaired, reserving intirely the right to assert it. This has been done; the principle was left unimpaired, and has been since successfully asserted.
The United States are at all times truly solicitous to diminish as much as possible the list of contraband. It is their interest, in common with all other nations whose policy is peace to enlarge, so far as they can be enlarged, the rights of neutrals. This interest is a sure guaran-tee for their using those means which they think calcu-lated to effect the object, and which a just regard to their situation will permit. But they must be allowed to pursue the object in such a manner as may com-pare with that situation. While they surrender no actual right, in preserving which there is a common interest; while they violate no pre-existing engagement, and these they have not surrendered or violated; they must judge exclusively for themselves how far they will or ought to go in their efforts to acquire new rights, or establish new principles. When they surrender this privilege, they cease to be independent, and they will no longer deserve to be free. They will have surrendered into other hands the most sacred deposits—the right of self-government; and instead of the approbation they will merit the contempt of the world.
Those parts of the treaty between the United States and Great Britain, which have been selected by France as injurious to her, have now been examined. The un-derlined are too well convinced that they in no degree justify the enmity they are alleged to have introduced, not to rely on a candid reconsideration of them as a sure means of removing the impressions they are supposed to have made.
Before this subject is entirely closed, one other ob-jection will be noticed: The very formation of a com-mercial treaty with England seems to be reprobated as furnishing just cause of offence to France; and Mr Adet has permitted himself to say, "It was a little matter, only to allow the English to avail themselves of the advantages of our treaty: it was necessary to assure these to them by the ad of a contract which might serve at once as a reply to the claims of France, and as a preemptory motive for refusal; the true cause of which it was requisite incessantly to disguise to her under specious pretests. Such was the object of Mr. Jay's mission to London; such was the object of a negotiation enveloped from its origin in the bosom of mystery, and covered with the veil of dissimulation."
Paling over this extraordinary language, the under-lined, being only desirous of producing accommodation by the exhibition of truth, will consider the opinion which is obliquely hinted, and the fact which is directly averred.
The practice of forming commercial treaties is so universal among other nations, having any commercial intercourse with each other, that it seems unnecessary to defend its utility. The right to form these treaties has been so univer-sally asserted and admitted, that it seems to be the inseparable attribute of sovereignty, to be questioned only by those who question the right of a nation to govern itself, and to be ceded only by those who are prepared to cede their inde-pendence.
But the prosperity of the U. S. is in a peculiar degree, promoted by external commerce. A people almost exclusively agricultural have not within themselves a market for the surplus pro-duce of their labor, or a sufficient number and variety of articles of exchange to supply the wants of the cultivation: they cannot have an internal, that will compensate for the loss of an external commerce: they must search abroad for manufactures for many other articles which contribute to the comfort and convenience of life, and they must search abroad also for a mar-ket for that large portion of the productions of their soil, which cannot be consumed at home. The policy of a nation thus circumstanced must ever be to encourage external commerce, and to open to itself every possible market for the dif-

position of its superfluities, and the supply of its wants. The commercial and manufacturing character and capacities of England must turn into that channel a considerable portion of the commerce of any nation under the circumstances of the U. S. It is a market too important and too valuable to be voluntarily closed; in consequence of which a considerable portion of their commerce has taken that direction, and a continual solicitude has been manifested to regulate and secure it by contract. To abolish this commerce, or to refuse to give it permanence & security by fair and equal stipulations would be a sacrifice which no nation ought to require and which no nation ought to make. In forming her treaty of amity and commerce with the U. S. France claimed no such prerogative. That treaty declares the intention of the parties to be "to fix in an equitable and permanent manner the rules which ought to be followed relative to the correspondence and commerce, which the two parties desire to establish between their respective countries, states and subjects;" and that "they have judged that the said end could not be better obtained than by taking for the basis of their agreement the most perfect equality and reciprocity, and by carefully avoiding all those burthensome preferences, which are usually sources of debate, embarrassment & discontent, by leaving all each party at liberty to make respecting commerce and navigation, those interior regulations which it shall find most convenient to itself, and by founding the advantages of commerce solely upon reciprocal utility, and the just rules of free intercourse, reserving withal to each party the liberty of admitting, at its pleasure other nations to a participation of the same advantages." The treaty itself contains no stipulation in any degree contradictory to those declarations of the preamble, or which could suggest a suspicion that under these declarations was concealed a wish to abridge the sovereignty of the U. S. with respect to treaties, or to control their interest in regard to commerce. In forming a commercial treaty with Britain therefore, in which no peculiar privilege is granted, the government of the U. S. believed itself to be transacting a business exclusively its own which could give umbrage to none, and which no other nation on earth would consider itself as having a right to interfere in. There existed consequently no motive for concealing from France, or any other power, that the negotiation of Mr. Jay might or might not terminate in a commercial treaty. The declaration therefore was not made; nor is it usual for nations about to enter into negotiations, to proclaim to others the various objects to which those negotiations may possibly be directed. Such is not, nor has it ever been the practice of France. To suppose a necessity or a duty on the part of one government thus to proclaim all its views, or to consult another with respect to its arrangements of its own affairs, is to imply a dependence to which no government ought willingly to submit. So far as the interests of France might be involved in the negotiation, the instructions given to the negotiator were promptly communicated. The minister of this republic was informed officially that Mr. Jay was instructed not to weaken the engagements of the U. S. to France. Further information was neither to have been required or expected: indeed that which was given, furnished reason to suppose that one of the objects of the negotiation with Britain was a commercial treaty. Why then such unnecessary and unmerited sarcasms against a cautious and unoffending ally? Those objects which she pursued were such as an independent nation might legitimately pursue, and such as America never had dissembled, & never deemed it necessary to dissemble her wish to obtain. Why should an effort be made to impress France with an opinion, that Mr. Jay was not authorized to negotiate a commercial treaty with Britain, when the fixed opinion of America has ever been, that France could not be, and ought not to be dissatisfied with the formation of such a treaty? Why should the minister of France have been informed officially that Mr. Jay was especially instructed not to weaken the engagements of the U. S. to France, if it were intended to convince that minister, that his powers did not extend to subjects in any degree connected with those engagements? To what purpose should the government of the U. S. have practiced a deception deemed by itself totally unnecessary, and which its utmost efforts could not long continue? It requires an equal degree of folly and vice to practice an useless fraud which must inevitably and immediately be detected, and the detection of which must expose its author to general infamy, as well as the enmity of those on whom the fraud had been practiced. These considerations ought to have produced some hesitation concerning the fact. The testimony in support of it ought to have been very positive and very unexceptionable, before it received implicit faith. It should have been very clear that there was no mistake, no misunderstanding concerning the information communicated, before the charge was made in such terms as the minister of France has been pleased to employ; but the testimony is believed to be satisfactory, that the government of the U. S. has not endeavored to impress in France any opinion on this subject which the fact of the case did not warrant. The declaration of Mr. Randolph, made July 8th, 1795, is full on this point. It is in these words: "I never could with truth have informed the French minister that the mission, as set forth in the President's message to the Senate, contemplated only an adjustment of our complaints; if by this phrase it be intended to exclude commercial arrangements, I could have no reason for saying so, since the French republic could have had nothing to do with our commercial arrangements, if they did not derogate from her rights; It
could have answered no purpose when so short a time would develop the contrary. I never did inform the French minister as is above stated. "The only official conversation which I recollect with Mr. Fauchet upon this subject, was when I communicated to him, with the President's permission that Mr. Jay was instructed not to weaken our engagements to France, neither then nor at any other time in official or unofficial conversation, did I ever say to him that nothing of a commercial nature was contemplated, or, that nothing but the controversies under the old treaty and the spoliations were contemplated. "Mr. Fauchet some time ago said to me that he understood from what I said that Mr. Jay was not authorized to treat of commercial matters. I told him that he misunderstood me, no letter has ever passed upon this subject." If then Mr. Randolph did give Mr. Fauchet the information contended for, it is plain that he never was authorized to do so; but the consideration a ready detailed, render it infinitely more probable that Mr. Fauchet has misunderstood Mr. Randolph, than that Mr. Randolph has mis-informed Mr. Fauchet. The undersigned have taken, they trust, a correct view of the leading and influential measures adopted by the government of the U. S.; they have endeavored to state with plainness & with candor the motives which have occasioned the adoption of those measures, and the operation they are believed to have. They have shown, that if America is to be reproached with partialities, irreconcilable with her neutral situation, it is not by France that those reproaches ought to be made. They have been induced to take this review, by a hope which they cannot relinquish without regret, that it may contribute to efface impressions which misrepresentation may have made, and to take from the intention and conduct of the government they represent that false colouring which unfriendly pencils have so profusely bestowed upon them. They are anxious still to cherish an hope, that by exposing frankly and sincerely, the sentiments which have hitherto guided their nation, they may restore dispositions on the part of France compatible with the continuance of those sentiments. Complaints have been made that in the application in particular cases of those general principles, which the neutral station of the U. S. renders indispensable, inconveniences and vexations which were unavoidable, have been sometimes sustained. These complaints have been separately and fully discussed. The undersigned persuade themselves, that the explanations which have been given respecting them, if not entirely satisfactory, have yet been such as to prove the good faith and upright intentions which never ceased to direct the conduct of the United States. If notwithstanding this good faith and the purity of these intentions, the difficulty of their situation has in any case produced even an involuntary departure from those principles by which they professed to be guided, they are ready to consider that case and repair any fault which may inadvertently have been committed. With these dispositions on their part, with this consciousness of having never ceased to merit the friendship and esteem of the French nation, with a conviction that a temperate and thorough view of the past cannot fail to remove prejudices not warranted by facts, the U. S. have relied confidently on the justice of France for a discontinuance and reparation of those serious and heavy injuries, which have been accumulated on them. Desirous of establishing, not the dependance of a weak on a powerful nation, but that real and cordial friendship, the willing and spontaneous offering of generous minds, which can only be lasting when evidenced to be mutual, and can only be preserved when bottomed on reciprocal justice, the undersigned will now represent with candor and frankness, the well founded complaints with which they are charged. These complaints consist:— Of claims uncontroverted by the government of France, but which remain unsatisfied, and Of claims founded on captures & confiscations the illegality of which has not yet been admitted. In the first class are arranged Firstly. Those whose property has been seized under the decree of the national convention of the 9th May, 1793. Secondly. Those who are entitled to compensation in consequence of the long detention of their vessels at Bourdeaux in the years 1793 and 1794. Thirdly. The holders of bills and other evidences of debts due drawn by the Colonial Administrations in the West Indies. Fourthly. Those whose cargoes have been appropriated to public use without receiving therefor adequate payment, and Fifthly. Those who have supplied the government under contracts with its agents which have not yet been complied with on the part of France. These well founded claims of American citizens, thus originating in voluntary and important supplies, in the forcible seizure of valuable property, accompanied with promises of payment, and injurious detentions constitute a mass of debt which the justice and good faith of the French government cannot refuse to provide for, and which is too considerable to be unnoticed by that of the U. S. The undersigned are instructed to solicit your attention to this subject, and they would persuade themselves that they do not solicit in vain. So many circumstances concur to give force to the application, that they leave it to your government in the confidence that no additional representations can be necessary. They pass to complaints still more more im-
portant for their amount, more interesting in their nature, and more serious in their consequences. On the 14th Messidor, 4th year of the French Republic, one and indivisible (July 2d 1796) the Executive Directory decreed "That all neutral or allied powers shall without delay be notified that the flag of the French republic will treat neutral vessels either as to confiscation, as to searches or capture, in the same manner as they shall suffer the English to treat them." This decree, in any point of view in which it can be considered, could not fail to excite in the U. S. the most serious attention. It dispenses at once as they conceive, with the most solemn obligations which compact can create, and consequently asserts a right on the part of France, to recede at her discretion from any stipulations she may have entered into. It has been demonstrated that governments may by contract change, as between themselves, the rules established by the law of nations, and that such contract becomes completely obligatory on the parties, tho' it can in no manner affect the rights of others, yet by this decree, allies with whom such stipulations exist are to be treated, without regard to such stipulations, in the same manner as they are treated by others, who are bound by a different rule. This, as it respects the U. S. is the more unfriendly, because a readiness has been manifested on their part so to modify by consent, their treaty with France as to reinstate the rules established by the law of nations. The general term too in which this decree is conceived, threatened but too certainly the mischiefs it has generated, and the abuses which have been practiced under it. Neutrals are to be treated as they shall permit the English to treat them. No rule extracted from the practice of England is laid down, which might govern the cruisers of France, or instruct the vessels of neutrals. No principles are stated manifesting the opinion entertained of the treatment received from England, which might enable a neutral to controvert that opinion, and to show that the English were not permitted to treat its flag as was supposed by the government of France. To judge from the decree itself, from any information given concerning it, or from the practice under it, those who were to be benefited by its abuse were to decide in what manner it should be executed, and the cruiser who should fall in with a valuable vessel had only to consult his own rapacity, in order to determine whether an English privateer, meeting a vessel under similar circumstances, would capture and bring her into port. Multiplied excesses, and accumulated vexations could not but have been apprehended from such a decree, and the fact has realized every fear that was entertained concerning it. It has been construed even in Europe to authorize the capture and condemnation of American vessels for the single circumstance of their being destined for a British port. At no period of the war has Britain undertaken to exercise such a power. At no period of the war has she asserted such a right. It is a power which prostrates every principle of national sovereignty and to which no nation can submit, without relinquishing at the same time its best interests and sacrificing its dearest rights. This power has been exercised by France on the rich and unprotected commerce of an ally, on the presumption that that ally was sustaining the same injuries from Britain, at a time when it was believed that the depredations of that nation had ceased, and the principle for compensating for them had been recognized. In the West Indies similar depredations have been experienced. On the 1st of August 1796, the special agents of the Executive Directory to the Windward Islands decreed, that all vessels loaded with contraband should be seized and confiscated for the benefit of the captors. On the seventh Frimaire, 5th year of the French Republic one and indivisible (27th Nov. 1796) the commission delegated by the French Republic to the Leeward islands, resolved that the captains of French national vessels and privateers are authorized to stop and bring into ports of the colony American vessels bound to English ports, or coming from the said ports. On the 19th Pluviose, 5th year of the French Republic, one and indivisible (Feb 1st 1797) Victor Hughes and Lebas, the special agents of the Executive Directory to the Windward islands, passed a decree, subjecting to capture & confiscation neutral vessels destined for the Windward and Leeward islands of America, delivered up to the English, and occupied and defended by the emigrants. These ports are said to be Martinico, St. Lucie, Tobago, Demarara, Berbice, Essequibo, Port-a-prince, St. Marks, L'Archaye, and Jeremie. This decree also subjects to capture all vessels which have cleared out for the West Indies generally. The undersigned will not detain you citizen Minister for the purpose of proving how directly and openly these decrees violate both the law of nations and the treaty between France and the United States. They have been executed on the officers and crews of the captured vessels in a manner by no means calculated to mitigate their rigor. The decree of the 14th Messidor was soon followed by another which has spared but little of the American commerce, except what has fortunately escaped the pursuit of the cruisers of France. On the 12th Ventose, 5th year (2d March 1797) the Executive Directory considering the treaty of amity, commerce and navigation concluded at London the 19th Nov. 1794, between the said U. S. and England, as containing concessions of privileges to Britain which under the treaty of Feb. 1778, might be enjoyed by this republic also, proceeds to modify the treaty between France and the U. S. by declaring enemies goods in American bottoms liable to capture and confiscation; by enlarging the
list of contraband and by subjecting to punishment as a pirate, any citizen of the United States holding a commission given by the enemies of France, as well as every seaman of that nation, making a part of the crew of enemies ships. The decree next proceeds to exact from America papers which had been made necessary to establish the neutrality of foreign vessels, generally, by the ordinance of the 26th July, 1778, but which had never been considered as applying to the United States; which required papers their vessels could not be supposed to possess, and when the treaty between the two nations was supposed to have rendered them unnecessary. The basis taken by the Executive Directory, on which to rest their modification of the treaty of the 6th Feb. 1778, is that by the treaty of the 19th Nov. 1794 "particular favors in respect of commerce and navigation have been granted to England." It has been demonstrated that no particular favors in respect of commerce or navigation, have been granted to England. That treaty has been shewn only to recognize, regulate and moderate in the exercise of the rights before possessed—rights which France & America had reciprocally ceded to each other, without requiring, as a condition of the cession, that either should compel England to form a similar stipulation. But to admit for a moment that the treaty with England might be considered as stipulating favors not before possessed, yet the American government did not so understand that treaty, and had manifested a disposition to modify, by common consent, its relations with this republic, in such manner as to reinstate a rule which has been voluntarily changed. It cannot but be sincerely regretted, because it seemed to indicate an unfriendly temper, that France has deemed it more eligible to establish by force, in opposition to her treaty, a principle which she deemed convenient, than to fix that principle on the fair basis of mutual and amicable agreement. But the clause under which these modifications are justified in these words: "The most christian King and the United States engage mutually not to grant any particular favor to other nations, in respect of commerce and navigation, which shall not immediately become common to the other party, who shall enjoy the same favor freely, if the concession was freely made, or on allowing the same compensation, if the concession was conditional." If these stipulations unequivocally amounted to the grant of favors, still the grants not gratuitous. The concessions on the part of the U. S. are made on condition of similar concessions on the part of Britain. If therefore France chooses to consider them as modifications of treaty of 1778, she can only do it by granting the reciprocal condition; on this supposition she has either of the rules at her election, but she cannot vary from the first without a compact on her part to grant the reciprocal stipulation. Such a compact is in the nature of a national treaty. But the rules laid down in the decree of the 12th Ventose, 5th year (March 2, 1797) as founded on the 17th, 18th, and 21st articles of the treaty of the 19th of November 1794 are materially variant from those articles. To demonstrate this it is only necessary to contrast the rules of the decree with the articles of the treaty on which those rules are said to be founded. Articles of the Treaty of the 19th Nov. 1794, as quoted by the Directory. Rules established by the Article of the Directory. ARTICLE 17. It is agreed that in all cases where vessels shall be captured or detained on just suspicion of having on board enemies' property, or of carrying to the enemy any of the articles which are contraband of war, the said vessels shall be brought to the nearest or most convenient port; & if any property of an enemy that be found on board such vessel, that part only which belongs to the enemy shall be made prize, and the vessel shall be at liberty to proceed with the remainder without any impediment. And it is agreed that all proper measures shall be taken to prevent delay in deciding the cases of ships or cargoes so brought for adjudication; & in the payment or recovery of any indemnification adjusted or agreed to be paid to the owners or masters of such ships. ARTICLE 17. According to the 17th article of the treaty of London, of the 19th of Nov. 1794, all merchandise of the enemy or merchandise not sufficiently proved to be neutral laden under the American flag, shall be confiscated, but the vessel on board of which it shall be found shall be released and restored to the owner. It is enjoined on the commissioners of the Executive directory to accelerate, by all the means in their power, the decision of contests which shall arise either on the validity of the prize cargo or on the freight and demurrage. According to the article, when on just suspicion of having on board enemy's property, or of carrying to the enemy contraband of war, a vessel shall be brought into port, that part only which belongs to the enemy shall be made prize, according to the article, then the fact whether the property does or does not belong to an enemy is to be fairly tried. The party who would establish the fact must prove it. The captor must show the justice of the suspicion on which the capture or detention was founded. The burden then of the proof rests on him. If in truth and in fact the property does not belong to an enemy or is not proved to belong to an enemy, it must be discharged. But the rule pursues a different course. The rule declares that mere a-priori of the enemy, or not sufficiently proved to be neutral, laden under the American flag, shall be confiscated. The burden of the proof is shifted from the captor to the captured. The question to be tried is not solely whether it be sufficiently proved to be neutral. The sufficiency of this proof is to be ascertained, not by general and satisfactory testimony, not by the great principles of truth and the common understanding of mankind, but by the exhibition of certain papers demandable at the will of one of the parties, and not in the possession of the other. This may be a regu-

lation which France chooses to establish; but certainly it is a regulation, essentially varied from the article it professes to resemble.
ARTICLE 18. In order to regulate what is in future to be esteemed contraband of war, it is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or by sea, as cannon, muskets, mortars, petards, bombs, grenades, carcases, saucisses, cartridges for cannon, musket rells, bandoliers, gunpowder, match, salt petre, ball, pikes, swords, bayonets, cuirasses, halberds, lances, javelins, horse furniture, holsters, belts, and generally all other implements of war; as also timber for ship building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron & fir plank only excepted.
The immense number of articles, which may serve indirectly for the armament and equipment of vessels, are made contraband by the rule of the Directory, tho' they are not so by the article it professes to cite.
ARTICLE 21. It is likewise agreed that the subjects & citizens of the two nations shall not do any acts of hostility or violence against each other, nor accept commissions or instructions to do any act from any foreign prince or state enemies to the party; nor shall the enemies of one of the parties be permitted to invite or endeavor to enlist into their military service any of the subjects or citizens of the other party, and the laws against all such offences & aggressions shall be punctually executed. And if any subject or citizen of the said parties respectively shall accept any foreign commission, or letters of marque for arming any vessel to act as a privateer against the other party, it is hereby declared to be lawful for the said party to treat and punish the said subject or citizen having such commission or letters of marque as a pirate.
The government of the U. S. has never found a treaty comprehending an article in any degree similar to this rule. It has never assented to such stipulations as they relate to its own citizens, or required them as they relate to those of other powers. The difference between the article and the rule requires no comment. Nor will the rule be commented on. The undersigned will only observe, that the article is by no means uncommon, but is to be found in most treaties of amity and commerce. The 21st article of the treaty with France, the 19th of the treaty with the United Provinces, the 23d of the treaty with Sweden, and the 20th article of the treaty with Prussia, contain similar stipulations. It is not easy to conceive a reason why it should not also be inserted in a treaty with England, or why its insertion should give offence to France.
But the fourth rule of the decree is in its operation, the most extensive and the most seriously destructive. That rule declares, that "Conformably to the law of the 14th of Feb. 1795, the regulations of the 21st of October, 1744, and of the 26th of July, 1778, concerning the manner of proving the property of neutral ships and merchandise, shall be executed according to their form and tenor."
"Every American ship shall therefore be a good prize, which shall not have on board a list of the crew in proper form, such as is prescribed by the model annexed to the treaty of the 6th of February, 1778, the observance of which is required by the 25th and 27th articles of the same treaty."
This rule requires, that American ships and merchandise, in order to prove the property to be American, shall exhibit certain papers, and especially a role d'equipage, which are required of neutrals generally by the particular marine ordinances of France, recited in the decrees of the Directory. But France and America have entered into a solemn treaty, one object of which was to secure the vessels of either party, which might be at peace from the cruisers of the other which might be engaged in war. To effect this object the contracting parties have not referred each other to the particular statutes or ordinances of either government, but have enumerated the papers which should be deemed sufficient. They have done more; they have prescribed the very form of the passport which should establish the neutrality of the vessel, and prevent her being diverted from her course. The 25th and 27th articles of the treaty between the two nations, which are quoted by the Directory, and are considered by the undersigned as conclusive on this subject, are in these words:
Article 25. "To the end that all manner of dissensions and quarrels may be avoided and prevented on the one side and on the other, it is agreed, that in case either of the parties hereto should be engaged in war, the ships and vessels belonging to the subjects or people of the other ally must be furnished with sea letters or passports, expressing the name, property and bulk of the ship, as also the name and place of habitation of the master or commander of the said ship, that it may appear thereby that the said ship really and truly belongs to the subjects of one of the parties, which passport shall be made out and granted according to the form annexed to this treaty, and they shall likewise be recalled every year, that is, if the ship happens to return home in the space of a year. It is likewise agreed that such ships, being laden, are to be provided not only with passports as above-mentioned, but also with certificates containing the several particulars of the cargo, the place whence the ship sailed, and whither she is bound, that so it may be known whether any forbidden or contraband goods be on board the same, which certificates shall be made out by the officers of the place whence the ship set sail, in the accustomed form; and if any one shall think it fit
or advisable to express in the said certificates the person to whom the goods on board belong, he may freely do so." Art. 27. "If the ships of the said subjects, people or inhabitants of either of the parties, shall be met with either sailing along the coasts or on the high seas, by any ship of war of the other, or by any privateers, the said ships of war or privateers, for the avoiding of any disorders shall remain out of cannon shot, and may send their boat, aboard the merchant ship, which they shall so meet with, and may enter her to the number of two or three men only to whom the master or commander of such ship or vessel shall exhibit his passport, concerning the property of the ship, made out according to the form inserted in the present treaty; and the ship, when she shall have shewed such passport, shall be free and at liberty to pursue her voyage, so as it shall not be lawful to molest or search her in any manner, or to give her chase or force her to quit her intended course."
It will be admitted that the two nations possess the power of agreeing that any paper in any form shall be the sole document demandable by either from the other, to prove the property of a vessel and cargo. It will also be admitted, that an agreement so made becomes the law of the parties, which must retain its obligation.
Examine then the words of the compact & determine by fair construction what will satisfy them. The 25th article states substantially the contents of a paper, which is termed a sea letter or passport, and which "it is agreed that in case either of the parties should be engaged in war, the ships and vessels belonging to the subjects or people of the other ally must be furnished with." To what purpose are they to be furnished with this sea letter or passport? The article answers, "To the end that all manner of dissensions and quarrels may be avoided and prevented, on one side and the other." "That it may appear thereby that the ship really and truly belongs to the subjects of one of the parties."
But how will the passport "prevent and avoid all manner of dissensions and quarrels on one or the other," if ordinances, both prior and subsequent to the treaty, are to be understood as controlling it, and as requiring other papers not contemplated in the public agreement of the two nations? how is it to appear from the passport, "that the ship really and truly belongs to the subject of one of the parties," if it is denied that the passport is evidence of that fact, and contended that other papers not alluded to in the treaty, shall be adduced to prove it?
But the 27th article is still more explicit. It declares that when a merchant ship of one of the parties shall be visited by the ships of war or privateers of the other, "the commander of such ship or vessel shall exhibit his passport, concerning the property of the ship, made out according to the form inserted in the present treaty, and the ship, when she shall have shewed such passport, shall be free and at liberty to pursue her voyage, so as it shall not be lawful to molest or search her in any manner, or to give her chase or force her to quit her intended course."—Yet the vessels of America, after exhibiting "such passport" are not "free and at liberty to pursue their voyage;" they are "molested," they are "chased," they are "forced to quit their intended course;" they are captured and confiscated as hostile property.
It is alleged that the form of the passport, which is annexed to the treaty, manifests that certain acts were to be performed by the person to whom the passport is delivered, and that such person ought to prove the performance of those acts.
But the treaty, far from requiring such proof, absolutely dispenses with it. The treaty declares that the passport shall itself evidence the property of the vessel and secure it from molestation of any sort. By consent of the parties, then the passport is evidence of all that either party can require from the other. Neither the right to give such consent, or the obligation of a compact formed upon it can, as is conceived, ever be denied, nor can the form of the passport, whatever it may be, change the compact.
But let the words of the model be examined. They are "A tous ceux que ces présentes verront; soit notoire que faculté et permission a été accordée à maître ou commandant du navire appelé de la ville de de la capacité de tonneaux ou environ, se trouvant présentement dans le port de qu'après que son navire a été visité et avant son départ, il prêtera serment entre les mains des officiers de la marine, que le dit navire appartient à un ou plusieurs sujets de dont l'acte sera mis à la fin des présentes; de même qu'il gardera les ordonnances et reglemens maritimes, et remettra une liste signée et confirmée par témoins, contenant les noms et surnoms, les lieux de naissance, et la demeure personnes composant l'équipage de son navire, et de tous ceux qui embarqueront, lesquels il de recevra pas à bord sans connoissance et permission des officiers de marine; et dans chaque port ou havre il montrera la présente permission aux officiers et juges de marine."
It is material to observe, that the model requires the oath concerning the property of the vessel to be annexed to the passport, but does not require any other certificate or the annexation of any paper whatever. Why this difference? It is a solemn proof of that for which the articles stipulates and therefore the model expresses that the evidence of this fact shall be annexed, but it does not require the production of the evidence of any other fact.
It seems then to be demonstrated that the sea letter or passport, a model of which is annexed to the treaty, is by solemn agreement to be received by each party as conclusive testimony, that the vessel producing such passport is the property of a citizen of the other, and is consequently to continue her voyage without molestation or hindrance.
But let it be supposed that the treaty on this subject was less conclusive, and that its stipulations had been ambiguously expressed; yet it is certain that it has been uniformly understood by both parties, as the undersigned have expounded it, and that neither France nor the U. S. previous to the decree complained of considered the vessels of their nation, producing the passport agreed on, as liable to capture for the want of a role d'equipage.
For more than four years after her treaty with the U. S. France was engaged in a war with Britain, and in the course of that time it was never suggested that a role d'equipage was necessary for the protection of an American vessel. It does not weaken the argument that the U. S. were also parties to the war. The principle assumed is, that without the production of the papers required by the decree, the vessel does not appear to be, and cannot be considered as American property. If this principle be correct, it would not cease to apply because the U. S. were engaged in the war. Was America even engaged in the war on the part of France, a British vessel carrying American colours would not be secured by the flag she bore. It would be necessary to prove by her papers, or other admissible testimony, that the vessel was American property. If this fact cannot appear without a role d'equipage, while the U. S. are at peace, neither could it appear without the same evidence, if the U. S. were parties to the war.
About four years of the present war had also elapsed before this construction of the treaty, at the same time so wonderful and so ruinous, had disclosed itself. In the course of that time the ports of France were filled with the vessels of the U. S. Very many of them failed under contracts made for the government itself, by its ministers in Philadelphia. No one of them possessed a role d'equipage; no one of them was considered on that account as being liable to condemnation. Indeed, in some instances, vessels have been captured and discharged, altho' this paper was not among those belonging to the ship.
Such a long course of practice appears to have evidenced unequivocally the sense of France, on this subject.
It is too apparent to be questioned for a moment, that on the part of the United States no suspicion had been entertained that such a paper could have been required. A role d'equipage could have been obtained with as much facility as that passport for which the treaty stipulates. Could it have been imagined that American vessels incurred the possible hazard of being retarded only one day in a voyage forward of such paper, it would in every instance have been supplied. No vessel would have failed without.
Your own mind, citizen minister, will suggest to you, with irresistible force, the extreme hardship of thus putting a new construction on a long existing contract, or of giving a new and unexpected extension to ancient municipal regulations, and of condemning thereby vessels taken on the high seas for want of a paper not known to be required, when they failed out of port. If a role d'equipage was really considered by France as necessary evidence of any fact, the establishment of which was deemed essential, common usage and those plain principles of justice which all nations should respect, indispensably require that the regulation should first be made known to a neutral and friendly nation by other means than by the capture & confiscation of its property.
If this measure had been announced to the government of the U. S. before it had been put in practice, and American vessels had failed without a role d'equipage, they would have taken upon themselves the hazard of such a procedure. But in a moment when the ocean is covered with peaceful merchantmen, pursuing a just and lawful commerce, to bring into sudden operation a measure which had never before been applied to them, which had for so many years slept unheard of, and by the force of this regulation to confiscate unguarded property which has been trusted to the seas, under the faith of solemn and existing treaties, and without a conjecture that this, more than any other formula, would have been required, is to impose on unoffending individuals a ruin from which no wise precautions, no human foresight could possibly have protected them.
On this subject then the undersigned appeal with confidence to the justice and equity of the French government. But could it be conceded for a moment that the executive directory might rightfully modify the treaty of France with the U. S. by that of the U. S. with Britain, and might rightfully require a role d'equipage in order to establish the neutrality of a vessel, for want of which the vessel might be confiscated, yet the cargo being proved to be neutral, ought to be safe. According to the law of nations, the goods of an enemy found on board the ship of a friend are liable to capture, and the goods of a friend found on board the ship of an enemy are safe. The U. S. and France have consented to change this rule as between themselves. They have agreed, that the goods of an enemy found on board the vessels of either party shall be safe, & the goods of either found on board the vessels of an enemy shall be liable to capture. The one part of this rule is in consequence of and dependent on the other. The one part cannot on any principle of justice be abandoned while the other is maintained. In their treaty with England the U. S. retain unchanged the principle of the law of nations. If France modifies her treaty in this respect by that of England, she ought to take the principle entire. It is conformity to the treaty between the U. S. and England, France claims the right of taking enemies property found on board an American ship then in conformity with that treaty also, France ought to spare American property found on board an enemy's ship. If, therefore, this ex-
traordinary position could be maintained, that an American ship without a role d'equipage becomes the ship of an enemy, still the cargo being proved to be the property of a friend ought on the principle of modifying the treaty between the two nations by that with England, to have been restored to the owners. The result of these regulations has been the most extensive and universal devastation of the American commerce. Not only vessels bound to and from the enemies of France, but vessels bound to and from her allies, and to and from her own ports have been seized and confiscated. The inevitable consequence has been, that direct commerce between the two nations is almost annihilated, and that the property of American citizens has been taken to a much larger amount than would have been possible in a state of actual war.
Yet the government of the U. S. willing, if it be possible, to avoid even defensive measure, has fought alladuously and unremittingly, though hitherto without success, for such peaceful and amicable explanations as might do away existing animosities, and restore between the two republics that harmony which is so truly desirous.
America has accustomed herself to perceive in France only the ally & the friend. Consulting the feelings of her own bosom, she has believed that between Republics an elevated and refined friendship could exist, and that free nations were capable of maintaining for each other a real and permanent affection. If this pleasing theory, erected with so much care and viewed with so much delight, has been impaired by experience, yet the hope continues to be cherished that this circumstance does not necessarily involve the opposite extreme. It is believed that there exists no sufficient cause for solid and permanent enmity between France and the U. S. but that on the contrary the interests of both would be prompted by that friendly intercourse, which a reciprocal observance of the great and immutable principles of justice would certainly establish and can alone preserve. Under this impression America resists the opinion that the present state of things has grown out of a digested system to which France designs to adhere. She wishes and she endeavours to persuade herself that temporary causes, which too often produce effects a sound and just policy must reprobate, connected with a misconstruction of the conduct of her government, as well as of the motives on which it has acted, may have occasioned those very serious aggressions of which she complains. She recedes therefore, even under the pressure of these aggressions, slowly and with difficulty from the attachments she has formed. So intertwined with every ligament of her heart have been the chords of affection which bound her to France, that only repeated and continued acts of hostility can tear them asunder.—The government of the U. S. therefore, still searches the means of terminating peaceably, and in a manner which ought to be mutually satisfactory, the calamities of the moment, and of averting the still greater calamities which may be reserved for the future. Not even the discouraging and unusual events which had preceded the present effort to negotiate could deter our government from repeating its endeavours for the preservation of amity and peace. Three citizens of the U. S. have been deputed as Envoys Extraordinary and Ministers Plenipotentiary to the French republic. Their instructions authorise and direct them to review the existing treaties between the two nations, and to remove by all proper means the inequalities which have grown out of the stipulations of those treaties, in consequence of the refusal of England to adopt the principles they contain. They are also directed to give fair and complete explanations of the conduct of the government they represent; to state fully and truly the heavy injuries which their fellow citizens have sustained; and to ask from the equity of a great and magnanimous republic that compensation for those injuries which, we flatter ourselves, their justice will not refuse and their liberal policy will not hesitate to give.
Bringing with them the temper of their government and country, searching only for the means of effecting the objects of their mission, they have permitted no personal considerations to influence their conduct, but have waited under circumstances beyond measure embarrassing and unpleasant, with that respect which the American government has so uniformly paid to that of France, for permission to lay before you, citizen minister, these important communications with which they have been charged.
Perceiving no probability of being allowed to enter, in the usual forms, on those discussions which might tend to restore harmony between the two republics, they have deemed it most advisable, even under the circumstances of informality which attend the measure, to address to your government, through you, this candid review of the conduct, and this true representation of the sentiments & wishes of the government of the United States. They pray that it may be received in the temper with which it is written, & considered as an additional effort, growing out of a disposition common to the government and people of America, to cultivate and restore, if it be possible, harmony between the two republics. If, citizen minister, there remains a hope that these desirable objects can be effected by any means which the U. S. have authorised, the undersigned will still solicit and will still respectfully attend the development of those means.
If on the contrary, no such hope remains, they have only to pray that their return to their own country may be facilitated; and they will leave France with the most deep & regret that neither the real and sincere friendship, which the government of the United States has so uniformly and unequivocally displayed for this great republic, nor its continued efforts to demonstrate the purity of its conduct and intentions, can protect its citizens, or preserve them from the calamities which they have fought by a just and upright conduct to avert.
The undersigned pray you, citizen minister, to accept the assurances of their perfect respect and confident regard.
C. C. PINCKNEY, E. GERRY, J. MARSHALL.
Paris, January 8th. 1798—in the 22d year of American Independence.
Printed by E. A. YENKS, Portland, MIDDLE STREET.