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CHAPTER A.

FRENCH INDEMNITY: CONVENTION OF APRIL 30, 1803.

At the close of the American Revolution the relations Treaties of 1778. between the United States and France were regulated

by two treaties, one of amity and commerce and the other of alliance, both of which were concluded on the 6th of February 1778. Before the end of the century various provisions in these treaties became the subject of international discussion. These provisions will be cited in the narration of the disputes that arose concerning them; but it may be useful now to refer to some of them, which figure most prominently in the history of subsequent events.

By Article XVII. of the treaty of amity and commerce, Treatment of Prizes. it was provided that the ships of war and privateers of

either party might, in time of war, freely carry their prizes into the ports of the other party; that such prizes should not, when so brought in, “be arrested or seized"; that they should not be subject to "searcb,” or to "examination” as to their “lawfulness;" but that they might be taken away at any time to the places expressed in the commissions of their captors, which commissions the captors should be obliged to show. On the other hand, it was provided that “no shelter or refuge" should be given by either party to vessels which had “made prize of the subjects, people or property" of the other party; but that such vessels, if forced in by “stress of weather, or the danger of the sea,” should be required to depart “as soon as possible.”

By Article XXII. of the same treaty it was provided Foreign Privateers. that neither party should permit privateers having

commissions from any prince or state in enmity with the other party, to fit out in its ports, or to sell their prizes, or even to purchase victuals, except such as should be necessary for a voyage to the next home port. Free Ships, Free Goods.

By Article XXIII. it was provided that free ships should make free goods.

By Article XI. of the treaty of alliance, which was described (Article II.) as a “defensive alliance," the

"essential and direct end” of which was “to maintain effectually the liberty, sovereignty and independence” of the United States“

as well in matters of government as in commerce,” the United States, in return for the guaranty of “their liberty, sovereignty and independence,

and also their possessions," guaranteed “to His Most Christian Majesty the present possessions of the Crown of France in America, as well as those which it may acquire by the future treaty of peace.” And in order to tix more precisely the sense and application" of

The Alliance.

this article, it was declared (Article XII.) “ that in case of a rupture between France and England the reciprocal guaranty declared in the said article shall have its full force and effect the moment such war shall break out.”

Five years after the signature of the definitive treaty Consular Convention of

of peace between the United States and Great Britain, 1788.

a consular convention between the United States and France was concluded. The negotiations which resulted in its signature began in 1782. On the 25th of January in that year a scheme of such a convention, which had been approved by Congress, was sent to Franklin with instructions to make it the basis of a formal treaty. On the 29th of July 1784 he signed a convention, but it proved to be unsatisfactory to Congress on grounds which are fully set forth in a report made by Mr. Jay, as Secretary for Foreign Affairs. The original scheme of Congress, from which Franklin bad departed, was regarded by Mr. Jay as being also in many respects open to objection, but he recommended that, as the negotiations had proceeded so far, Mr. Jefferson, who had succeeded Franklin at the Court of Versailles, should be directed to negotiate a convention in substantial conformity with it. Instructions were given in accordance with this recommendation, and on November 14, 1788, Jefferson concluded a new convention. Mr. Jay, though he apprehended that it would prove more inconvenient than beneficial to the United States, advised that it be ratified, since it adhered to the plan to which the United States was already committed.3

By Article VIII. of this convention it was provided Powers of Consuls. that consular officers should "exercise police over all

the vessels of their respective nations," and should “have on board the said vessels all power and jurisdiction in civil matters in all the disputes which may there arise;" and that they should “have an entire inspection over the said vessels, their crew, and the changes and substitutions there to be made.” It was, however, provided that these functions should be "confined to the interior of the vessels," and that they should not be permitted to interfere “with the police of the ports” in which the vessels might happen to be.

The ratifications of this convention were exchanged Commercial Discontents. at Paris on the 6th of January 1790; but before the

close of the year a controversy arose between the two countries in regard to matters of commerce. By royal decrees of December 29, 1787,4 and December 7, 1788, exceptional favors were granted to commerce with the United States in respect of various articles, such as whale oils and spermaceti, fish and fish oils, agricultural products, products of the forest, and certain manufactured articles. But, in spite of favors, the commerce of the United States tended to revert to its former channels. Commerce with England increased, while trade with France languished and failed. The development of this tendency produced in

March 9, 1786, Dip. Cor. 1783–1789, I. 218.
2 Dip. Cor. 1783-1789, I. 232.
3 Am. State Papers, For. Rel. I. 89.
4 Id. 113.
5 Id. 116.
61d. 120.

France a feeling of dissatisfaction, which was intensified by the disposition of Congress to sabject commerce with France to the same regulations as that with Great Britain. By an act of July 20, 1789,' a duty of 6 cents a ton was imposed on American-built vessels belonging to citizens of the United States, while a duty of 30 cents a ton was imposed on such vessels belonging wholly or in part to aliens, and of 50 cents a ton on all other vessels. This act was renewed on the 20th of the following July.2

By a royal decree of France of December 29, 1787, vessels built in the United States and sold in France, or purchased by Frenchmen, were exempt from all duties. The French chargé d'affaires at Philadelphia complained, by direction of his government, against the acts of 1789 and 1790 as an infraction of the fifth article of the treaty of amity and commerce of 1778. This article was connected with the third and fourth articles of the same treaty, by which it was respectively provided that French subjects in tbe United States, and citizens of the United States in France, should pay no other or greater duties than were required of the subjects or citizens of the most favored nations. “In the above exemption,” says Article V., “is particularly comprised the imposition of 100 sols per ton, established in France on foreign ships.” It was contended by France that the effect of this provision was to exempt the ships of the contracting parties from the payment of any tonnage duties, and that the failure of Congress to make an exception in favor of France constituted a violation of the treaty, and placed French commerce on the same footing as English. Jefferson, who had then become Secretary of State, answered that the stipulation in regard to the duty of 100 sols in France merely relinquished an antecedent exaction from which the most favored nations were already exempt, and left both parties free to impose other duties, provided all nations were subjected to them alike. In other words, he maintained that the provisions of the third and fourth articles were not enlarged by the provisions of the fifth article, but that the latter was intended, out of abundant caution, to designate by name a particular duty against which it was desired to guard. Nevertheless, he advised that the claim of the French Government should be allowed, especially in consideration of the privileges granted to the United States by the royal decrees of 1787 and 1788.3 The acts of Congress, however, were not modified. Indeed, before the complaint of the French chargé d'affaires was communicated to the Senate an extract was sent to that body from a letter of Mr. Short, the chargé d'affaires of the United States in France, by which it appeared that the National Assembly was then engaged in the adoption of measures which subjected the commerce of the United States to onerous burdens and put an end to the commercial system which prevailed before 1789.

On the 12th of January 1792 Gouverneur Morris was Gouverneur Morris. appointed by Washington as minister plenipotentiary

to France. Since September 26, 1789, when Jefferson, who had accepted the office of Secretary of State, placed William Short in charge of the legation at Paris, the post had been vacant. The appointment of Morris was made by Washington not without misgivings; for while entertaining absolute confidence in Morris's integrity, he recognized, in the opposition which the nomination excited in the Senate, the fact that the possession of a lively and brilliant imagination” and a “gift of ridicule” would require of Morris, in the delicate situation in which he was placed, the exercise of unusual caution. There was, however, another ground of opposition to Morris's appointment. “ It was urged," said Washington, in an admonitory letter, “that in France you were considered as a favorer of the aristocracy and unfriendly to its rov. olution.” In what sense this was trae no one understood better than Washington, with whom Morris had for three years been in correspondence in regard to events in France. In his own country Morris bad been a supporter of the Revolution, a member of the Continental Con ess, assistant to Robert Morris in the management of the public finances, and a member of the Constitutional Convention of 1787. To mental gifts of a high order he united a capacity for public business. In his views of gov. ernment he belonged to the same school as Washington. He regarded the maintenance of a just public authority not as a menace to liberty, but as its essential safeguard. In the first stages of the French revolution he could see "every reason to wish that the patriots may be successful,” though he apprehended that the “crumbling matter” on which the edifice of freedom was to be erected would, when exposed to the air, “fall and crush the builders.” He instinctively recoiled from the excesses that were committed when his apprehensions came to be fulfilled. Before he became minister of the United States he offered his counsel to Louis XVI. Ho afterward sought to effect that monarch's escape; and having witnessed the execution both of the King and the Queen, and the destruction of all public authority, he prophesied that, whatever might be the lot of France in remote futurity, she must soon come, probably through the medium of a triumvirate or other small body of men, to be “governed by a single despot.”4 Such was the man whom Washington chose as minister to France. While it was impossible for him to be acceptable to the revolutionary leaders, who, following each other in quick and violent succession, exhibited in their elevation and their fall the tempestuous and fickle impulses of unrestrained popular passion, be at any rate possessed an intimate knowledge of the conditions and tendencies of the time, and was not likely to commit his government to extravagant policies.

11 Stats. at L. 27. 21 Stats, at L. 135. 3 Am. State Papers, For. Rel. I. 109. 4Id. 120–132.

At the period of Morris's appointment, the commerProffer of Commercial

cial relations between the United States and France Negotiation.

had fallen into an unfortunate condition. With a view to restore them to their former state, as well as to improve the political relations of the two countries, Jefferson desired to conclude a new commercial convention. He expressed to Morris his disappointment that overtures had not been made to the United States for a treaty of commerce,

| Writings of Washington, ed. by Sparks, X. 216–218. 2 Wharton's Dip. Cor. Am. Rev. IV. 622. 3 Letter to Washington, April 29, 1789, Am. State Papers, For. Rel. I. 379. 4 Letter to Washington, October 18, 1793, Am. State Papers, For. Rel. I. 398.

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1792.

and said that if the National Assembly expected the United States to declare their readiness to meet them on that ground, they would not hesitato to make sach a declaration. In the mean time he desired that matters might be placed in their former condition, by the repeal of “the late innovations as to our ships, tobacco, and whale oil.”! He was anxious lest the postponement of a conventional arrangement might compel the United States to resort to retaliatory measures in order to do justice to their own navigation. On the 9th of July 1792 Morris proposed to the French Government the negotiation of a commercial treaty, and in so doing adverted to the discontent excited in America by the decrees of the Constituent Assembly. On the 23d of July he received a reply in which a promise was made that his proposal would be communicated to the King and to the National Assembly.3

On the 16th of August Morris announced that another Revolution of August revolution had been effected in Paris, and that “it was

bloody.” 4 On the 10th of August the King was deposed, and the revolution progressed rapidly amid scenes of bloodshed and confusion. Morris asked for instructions respecting the conduct he should pursue “in the circumstances about to arise." The present executive was, he said, just born, and might be stified in the cradle; and he found himself “in a state of contingent responsibility of the most delicate kind.”5 Jefferson replied that it accorded with the principles of the United States "to acknowledge any government to be rightful which is formed by the will of the nation substantially de red;" that with such a government "every kind” of business might be done; but that there were matters” which might be transacted with a government de facto, such, for example, as to reform the unfriendly restrictions of our commerce and navigation.” Unless, said Jefferson, “the late innovations” were revoked the United States must lay additional and equivalent burdens on French ships by name.

When Morris, on the 13th of February 1793, acknowlWar between France and

edged the receipt of these instructions, Louis XVI. had Great Britain.

been beheaded and war against England had been declared. “You had previously instructed me,” wrote Morris to Jefferson, “to endeavor to transfer the negotiation for a new treaty to America; and if the revolution of the 10th of August had not taken place, but instead thereof the needful power and confidence had been restored to the crown, I should perhaps have obtained what you wished, as a mark of favor and confidence.

At any rate, the thing you wished for is done, and you can treat in America, if you please. Whether you will or not is another affair."? In truth, Morris did not believe that the negotiation

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1 Jefferson to Morris, March 10, 1792, Jefferson’s Works, ed. by Washington, III. 338.

2 Jefferson's Works, ed. by Washington, III. 356, 449.
3 Am. State Papers, For. Rel. I. 332-333.
*dm. State Papers, For. Rel. I. 333.
5 Am. State Papers, For. Rol. I. 334.
6 Jefferson's Works, od. by Washington, III. 489.
Am. State Papers, For. Rel. I. 350.

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