Page images


dom of the signers is displayed in the first instruction they contain: 'When you come to Paris you will be introduced to a set of acquaintance, all friends to the Americans. By conversing with them you will have a good opportunity of acquiring Parisian French.'

"On the 17th day of the following September, nearly two years prior to the adoption of the Articles of Confederation, 'Congress took into consideration the plan of treaties to be proposed to foreign nations, with the amendments agreed to by the committee of the whole,' and thereupon adopted a plan of treaty to be proposed to His Most Christian Majesty the French King, which will be found in the secret journal.'

This remarkable state paper contains the germ (often expressed in the identical language) of many of the provisions of subsequent treaties of the United States.


"In one respect it was many years in advance of provisions actually incorporated into any treaty. Its first and second articles stipulated that the citizens of each country in the ports of the other should pay no other duties or imports than the natives were required to pay, and should enjoy the same privileges, immunities, and exemptions in trade, navigation, and commerce which natives enjoyed, and the twelfth article contemplated a similar reciprocal agreement in respect of some exports. It was not until after the peace of 1814 that this principle of reciprocity was incorporated into a treaty of the United States.

"The commissioners who were originally selected by the Continental Congress to conclude treaties with the European powers were Dr. Franklin, Silas Deane, and Thomas Jefferson. Jefferson having declined, Arthur Lee was elected in his place.

"On the 6th of February, 1778, these commissioners concluded a treaty of alliance and a treaty of amity and commerce with the King of France. These important acts were followed by the conclusion of treaties of amity and commerce with the Netherlands, in 1782, and with Sweden in 1783; of the treaty of peace with Great Britain in 1783 (to which the names of Adams, Fraukliu, and Jay were attached under a special power); of a treaty of amity and commerce with Prussia in 1785; of a treaty of peace and friendship with Morocco in 1787, and of a consular convention with Franee in 1788.


"In regulating the commercial and political relations between the United States and other powers these several treaties secured the recognition of the independence of the United States, and also the assent of other powers to many important principles, some of which were not then universally recognized as constituting part of the public law which should govern the intercourse of nations with each other. It is not difficult to recognize in these provisions the impress of the statesmanlike intelligence and humane and elevated characters of the members of the Continental Congress, and of the American plenipotentiaries who negotiated the several treaties.

"The evils of war were lessened by agreements that, in case it should break out, time should be given to the citizens of each in the territories of the other to close their business and remove their properties; or that, should differences arise, resort should not be had to force until a friendly application should be made for an arrangement.

"A restraint was imposed upon private war by provisions forbidding the citizens of either power to accept commissions or letters of marque from enemies of the other power when at war; and the acceptance of such commissions or letters was declared to be an act of piracy, which placed the offender beyond the claim of national protection.

"The rights of neutrals to maintain and carry on their commerce and trade on the high seas during time of war were fully recognized. For this purpose articles which were to be held to be contraband of war were expressly defined and limited; and in the treaty of 1785 with Prussia, which bears the signatures of John Adams, Dr. Franklin, and Jefferson, it was even agreed that no articles should be deemed contraband, so as to induce confiscation, or condemnation, and a loss of property to individuals. It was further agreed that free ships should make free goods; and that neutral goods found in an enemy's ship should not be confiscated if they had been put on board before the declaration of war, or within such short period thereafter that an ignorance of the state of war might fairly be implied.

Precise rules were laid down to be observed in the visit of neutral vessels on the high seas, and humane regulations were made respecting vessels on which articles contraband of war should be discovered.

"To prevent the destruction of prisoners of war by sending them into distant and inclement countries or by crowding them into close and noxious places,' regulations were made for their treatment; and it was agreed that women and children, scholars, and cultivators,' all others whose occupations are for the common subsistence and benefit of mankind,' should be allowed to continue their respective employments in time of war; that merchant and trading vessels employed in rendering the necessaries of human life more easy to be obtained, should be allowed to pass unmolested in such time; and that no commissions should be granted to private armed vessels.

"The power of the new nation whose existence had been recognized by these treaties to regulate and control its commercial relations with foreigu powers was uniformly asserted in this series of treaties. They placed each of the other powers, in respect of commerce and navigation within each and every state, cn the footing of the most favored nation; and it was agreed with Prussia that the ports of each power should be open to the other, and that the duties, charges, and fees, to be imposed by each upon articles the growth, produce, or manufacture of the other, should be only such as should be paid by the most favored nation.

"In the articles affecting the relations between the United States and the several States these early treaties asserted the nationality of the United States in a no less marked manner.

"They prohibited the exaction in any State of the droit d'aubaine or other similar duty. They allowed aliens to hold personal property and to dispose of it by testament, donation, or otherwise, and to succeed to it, and they prohibited the exaction in such case by any State of dues, except such as the inhabitants of the country were subject to. They allowed aliens, without obtaining letters of naturalization, to inherit real estate and things immovable in every State, but in such case the Prussian alien was required to sell the real estate and withdraw the proceeds, which he was to be permitted to do without molestation, and in case of withdrawal no droit de détraction was to be exacted.

"The right to aliens to frequent the coasts and countries of each and all the several States, and to reside there and to trade in all sorts of produce, manufactures, and merchandise was granted by the National Government, and the States were prohibited from imposing upon such aliens any duties or charges to which the citizens of the most favored nation were not made subject. Resident aliens were also assured against State legislation to prevent the exercise of an entire and perfeet liberty of couscience and the performance of religious worship, and,

when dying, they were guaranteed the right of decent burial and undisturbed rest for their bodies.

"The consular convention concluded with France by Jefferson maintained a yet wider supremacy for the national authority. It authorized French consuls to administer in certain cases upon the estates of their deceased countrymen in the several States, to exercise police over all the vessels of their nation in whatever American port they might discharge their functions, to arrest the officers or crews of such vessels, to require the courts to aid them in the arrest of deserters, and it even elevated them into judges and authorized them to determine all differences and disputes arising between their countrymen in the United States.

"The same statesmen contemplated at one time a postal convention between France and the United States. A scheme was submitted by the French minister, after considering which Jay submitted a counter proposal, but nothing further appears to have been done. Had the scheme been carried out it would have anticipated by half a century the modern international postal convention of the United States.

"The several treaties and conventions thus negotiated have served as the basis or model of many of the commercial and general conventions entered into by the United States since the adoption of the Constitution."

Mr. J. C. B. Davis, Notes, &c.

"The construction put by President Washington on the agreement of guarantee contained in the eleventh article of the treaty of 1778 with France, together with the conclusion of the treaty of 1794 with England, had affected the relations of the two countries to such a degree that in 1798 Congress had, by law, assumed to exonerate the nation from further obligation to observe the treaties with France, and the Attorney-General had given an official opinion that there was a state of war. The treaty of 1800 restored the good relations, but in the amendments on each side the old treaties entirely disappeared. The subject will be further considered hereafter. This treaty, although concluded during the administration of President Adams, was finally proclaimed by Jefferson after he became President."

Mr. J. C. B. Davis, Notes, &c. As to effect of this guarantee, see prior authorities in this section; and see, also, supra, ◊ 137a; infra, §§ 240, 248.

"Mr. Frescot remarks, in reference to our position at the commencement of the wars growing out of the French Revolution, There were two courses open to the United States,-either to give way to the pressure of circumstances and join one or other of the contending parties or to declare the French treaties null and void, and, without approaching England, hold themselves free and neutral. After a long and conscientious deliberation, General Washington determined upon a course which was neither one nor the other, and which, notwithstanding its fair and honest spirit, combined, it must be acknowleged, the difficulties of both. He resolved to maintain neutrality and the French treaties together.' (Diplo matic History of the Administrations of Washington and Adams, p. 138.) The exoneration of the United States from the duties imposed by the French treaties would seem to have been far from clear, even in the minds of those who had maintained the right, under the circumstances, of our being at liberty to absolve ourselves from the obligation of them. Mr. Hamilton, notwithstanding the advice he had given as a member of Wash

ington's Cabinet in 1793, and his subsequent repugnance in 1799 to any renewal of negotiations with a revolutionary government in France, in 1797, in a letter to his successor in office, advocated an extraordinary mission, and which, according to him, 'ought to embrace a character in whom France and the opposition have full confidence.' The motive assigned was, 'We may remould our treaties. We may agree to put France on the same footing as Great Britain by our treaty with her. We may also liquidate, with a view to future wars, the import of the mutual guarantee in the treaty of alliance, substituting specific succors and defining the casus fœderis. But this last may or may not be done, though with me it is a favorite object.' (Gibb's Memoirs of the administrations of Washington and Adams, vol. i, p. 490. Mr. Hamilton to Mr. Wolcott, Apr. 5, 1797. C. F. Adams, Works of John Adams, vol. x, p. 254.)

"The embarrassments arising from the special privileges accorded to France, referred to in the text, were much increased by the insertion of similar provisions in the treaty of 1794, with England, and by the mensures adopted by Congress to abrogate the French treaties, after the offensive termination, in 1798, of the mission of General Pinckney, with whom were associated Mr. (afterwards chief justice) Marshall and Mr. Gerry. In order to comprehend fully the subsequent negotiations between Ellsworth, Davie, and Murray, and Joseph Bonaparte, Fleurieu, and Roederer, which resulted in the convention of September 30, 1800, 'the following facts, Mr. Trescot says, 'must always be borne in mind: (1) That by the 11th article of the treaty of alliance France and the United States had mutually guaranteed their American possessions, and that by the 17th and 22d articles of the treaty of commerce of 1778 they granted to each other the mutual and exclusive privilege of taking their prizes and privateers into each other's ports. (2) That by the (24th and 25th articles of the) treaty of 1794 with England this same exclusive privilege had been granted by the United States to that power; but that owing to the priority of the French treaty, and the exclusive character of the privilege, it remained in abeyance, as far as England was concerned, so long as the French treaty lasted. (3) That by the act of July, 1798, the United States Government had canceled the French treaties of 1778, and thus given priority and activity to the exclusive privilege stipulated in the treaty with England. (Diplomatic History, etc., p. 208.)

"The draft of the convention presented by the American plenipotentiaries contained an article for a commission to ascertain indemnities mutually due, and it provided in reference to the commissioners that 'they shall decide the claims in question according to the original merits of the several cases, and to justice, equity, and the law of nations, and in all cases of complaint existing prior to the 7th of July 1798 (the date of the cat of Congress cancelling the treaties), according to the treaties and consular convention then existing between France and the United States.

"That France should admit the validity of the unilateral abrogation of the treaties, except as an act of war, which of itself would discharge all reclamations for their previous violation, could scarcely have been expected on the part of the United States. Much less could it have been supposed that if she stipulated to make compensations for infractions of conventional obligations, France would recognize those altered relations, professedly induced by a disregard of our reclamations, which transferred to England the special privileges that the treaties of the revolution secured to her. The French plenipotentia

ries would consent to the abrogation of the old treaties; but as such an abrogation could only be the result of war, they were obliged to consider the action of the United States preceding, as equivalent to war, and a new treaty, in necessary consequence, a treaty of peace. In such case the question of indemnity must be laid aside, because a war extinguished all neutral obligations; each party had taken the remedy of complaints into its own hands, and a treaty of peace was a fresh start upon such a new basis as their respective positions warranted them in proposing; and therefore they offered to the American ministers either the abrogation of the old treaties without indemnity or indemnity with the old treaties. And they added that, in any new treaty, while France would cheerfully abandon her privilege of exclusive asylum, she would not consent to occupy an inferior position to any other nation. (Ibid., p. 215.)"

Lawrence's Wheaton (ed. 1863), pp. 712–714. For a discussion of the obligations imposed on the United States by the treaty of 1778 with France, see 3 Philli. Int. Law (3 ed.), 228; 1 Lyman's Diplomacy of the U. S., 38 ƒƒ.; 1 Randall's Jefferson, chap. xiv, ff.

"The treaties of 1778 were two in number, that of alliance,' the one of most immediate, and, in fact, at the time, of absolutely vital importance to the United States; and that of 'amity and commerce.' While separate instruments, they were concluded upon the same day, were the result of the same negotiation, signed by the same plenipotentiaries, and are, in diplomatic effect, one instrument. The treaty of alliance, after referring to its companion, the treaty of commerce, states that the two powers have thought it necessary to take into consideration the means of strengthening the engagements therein made,' and of 'rendering them useful to the safety and tranquillity of the two parties; particularly in case Great Britain, in resentment of that connection should break the peace with France, either by direct hostilities or by hindering her commerce and navigation in a manner contrary to the rights of nations and the peace subsisting between the two crowns;' and two powers resolving in such case to join against the common enemy determined upon the treaty, which provided that if war should break out between France and Great Britain during the war for America independence, each party should aid the other, according to the exigencies, as good and faithful allies; that the essential end of the alliance, called a 'defensive' alliance, was the 'liberty, sovereignty, and independence, absolute and unlimited, of the United States.'

"Provision was also made for a possible conquest of Canada, Bermuda, and the islands in the Gulf of Mexico, and each party was forbidden to conclude a truce or peace with Great Britain without the consent of the other. It was further agreed that neither should lay down arms until the independence of the United States was assured by treaties terminating the war. No claim was to be made by one against the other for compensation, whatever the result, and then came the guarantee, out of which afterwards arose so serious complications, national and international, which not only drove our country, weak and exhausted from seven years' strife, to the verge of war, but also stirred up at home a bitter political contest, carried even into the intimacy of a President's Cabinet.

"These stipulations are contained in the eleventh and twelfth articles, whereby each party guaranteed forever against all other powers'first, the United States to France: All the possessions of France in America as well as those it might acquire by any future treaty of peace;

« PreviousContinue »