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second, France to the United States: "Their liberty, sovereignty, and independence absolute and unlimited,' together with their possessions and their additions or conquests made from Great Britain during the war. Such, in substance, was the treaty of alliance; it has never been contended so far as known to us that France did not fulfill the requirements which this instrument imposed upon her during our contest with Great Britain.

"The provisions of the other agreement, the treaty of commerce, of importance in this case (alluding to them briefly) required protection of merchantmen; required ships of war or privateers of the one party to do no injury to the other; and provided especial, purely exceptional, and exclusive privileges by each party to the other as to ships of war and privateers bringing prizes into port.

"The treaty of alliance was not one-sided, for it imposed upon the United States a possible duty and burden in the fulfillment of the guarantee of French possessions in America 'forever' against all other powers.

"We had promised France that their ships of war and privateers might freely carry whithersoever they pleased the ships and goods taken from their enemies; that these prizes should not be arrested or seized, or examined, or searched in our ports, but might at any time freely leave, while no shelter or refuge was to be given to vessels having made prize of her subjects, people, or property. (Article 17, treaty of commerce, 1778.) The United States had thus given France, and for consideration, not only a valuable, but an exclusive right; yet the Jay treaty in the twenty-fifth article gave these same privileges to Great Britain, excluding all vessels which 'should have made prize upon [her] subjects.'

The conflict of the treaties is evident and of course was fully appreciated at the time." As to Jay's Treaty, see infra, § 150 a.

While the Jay treaty was concluded in November, 1794, its ratifications were not exchanged until October the following year, and meantime the British orders in council directing seizure of our vessels and provisions bound to France were so enforced as to call forth from Mr. Randolph, then Secretary of State, the warning, as late as July, 1795, that the Jay treaty had not yet been ratified by the President; 'the late British order in council for seizing provisions is a weighty obstacle to ratification. I do not suppose that such an attempt to starve France will be countenanced.' (Foreign Relations, vol. 1, p 719.) Every endeavor was made by the United States to secure a repeal of the admiralty order, but without success, and finally our minister in London, Mr. Adams, was instructed that if, after every prudent effort, he found it could not be removed, its continuance was not to be an obstacle to the exchange of ratifications. The order was not removed or modified; nevertheless ratifications of the treaty were exchanged the following October.

Long prior to this, Jefferson, while in Paris, had told the British minister there, during a discussion as to the effect of the treaties of 1778, in case of war between France and Great Britain, and told him frankly and without hesitation,' that the dispositions of the United States would then be neutral, and that this would be to the interest of both powers, because it would relieve both from all anxiety as to feeding their West India Islands; that England, too, by suffering us to remain so, would avoid a heavy land war on our continent, which

might very much cripple her proceedings elsewhere; that our treaty [with France] indeed, obliged us to receive into our ports the armed vessels of France, with their prizes, and to refuse admission to the prizes made on her by her enemies; that there was a clause, also, by which we guaranteed to France her American possessions, and which might per haps force us into the war if these were attacked. Then it will be war,' said the minister, 'for they will assuredly be attacked.'

"In 1780 another American minister informed the English secretary of state for foreign affairs 'that in a war between Great Britain and the House of Bourbon (a thing which must happen at some time) we [the United States] can give the West India Islands to whom we please. without engaging in the war ourselves, and our conduct must be gov erned by our interest' (Wait's Am. St. Pap, vol. 10, 97); and this in face of a treaty concluded but twelve years before, wherein we pledged ourselves to a guarantee 'forever' of the possessions in America of that very House of Bourbon. Early in 1794 Mr. Jefferson, then Secretary of State, said, as to this subject, that he had no doubt we should interpose at the proper time and declare both to England and France that these islands are to rest with France, and that we will make a common cause with the latter for that object.' (Jefferson to Madison, April 3, 1794, Jeff. Works, vol. 4, 103.)"

Opinion of Judge John Davis on French spoliations. C. Cls., May 17, 1886.
See infra, § 248.

As to annulling treaties by legislation, see supra, § 138.


§ 148a.

As is elsewhere noticed (supra, §§ 78, 81, 83), Mr. Adams, in February, 1799, after the rupture with France consequent on the termination of the mission of Messrs. Pinckney, Marshall and Gerry in March, 1798, (supra, § 85,) nominated as ministers extraordinary to France Chief-Justice Ells worth, Governor Davie, of North Carolina, and Mr. Murray, then minis ter at The Hague. These envoys found Napoleon in full power as First Consul. The relations of the countries were greatly changed from what they had been on the preceding mission. The prior treaty of alliance had, by act of Congress, been dissolved, so far as concerned the United States municipally; and the ministers, instead of coming to Paris on a treaty basis, appeared before the French Government simply as claiming, on the basis of the law of nations, indemnity for injuries sustained from France, which indemnity, however, could scarcely be insisted on without tendering something in the nature of an equivalent. The treaty of alliance, as has just been seen, secured to France several important advantages: (1) A guarantee by the United States of the French-American islands, which guarantee, however, it was claimed that the Directory had waived by its ministers in the United States. (2) The mutual and exclusive privilege of taking prizes and privateers into each other's ports. This privilege was afterwards granted to England by the treaty of 1794, but, so far as concerns England, it was claimed to remain in abeyance, as long as the French treaty was in force. But by the act of July, 1798, it was alleged, the exclusive privileges given in the British treaty of 1794, came into effect, as a consequence of the abrogating by that act of the French treaty of 1778, The American envoys were instructed as follows:

"The following points are to be considered ultimated :

"1. That an article be inserted for establishing a board, with suitable powers, to hear and determine the claims of our citizens for the causes herein before expressed, and binding France to pay or secure payment of the sums which shall be awarded.

"2. That the treaties and consular convention, declared to be no longer obligatory by act of Congress, be not, in whole or in part, revived by the new treaty; but that all engagements to which the United States are to become parties be specified in the new treaty.

"3. That no guarantee of the whole or any part of the dominions of France be stipulated, nor any engagement made in the nature of an alliance.

“4. That no aid or loan be promised in any form whatever.

"5. That no engagement be made inconsistent with the obligations of any prior treaty, and, as it may respect our treaty with Great Britain, the instruction herein marked XXI is to be particularly observed.

"6. That no stipulation be made granting powers to consuls or others under color of which tribunals can be established within our jurisdiction, or personal privileges be claimed by Frenchmen, incompatible with the complete sovereignty of the United States in matters of policy, commerce, and government.

7. That the duration of the proposed treaty be limited to twelve years, at furthest, from the day of the exchange of the ratifications, with the exceptions respecting its permanence in certain cases specified under the instructions marked XXX" (in reference to the settlement of claims). The positions taken by the American envoys, on the question of the abrogation of the treaty of alliance, were as follows:

1. That a treaty being a mutual compact, its violation by one party justified its abrogation by the other; and 2, "That it had become impossible for the United States to save their commerce from the depredations of the French cruisers, but by resorting to defensive measures; and that, as by their constitution existing treaties were the supreme law of the land, and the judicial department, who must be governed by them, is not under the control of the executive or legislative, it was also impossible for them to legalize defensive measures, incompatible with the French treaties, while they continued to exist. Then it was they were formally renounced, and from that renunciation, there resulted, necessarily, a priority in favor of the British treaty, as to the exclusive asylum for privateers and prizes."

To these arguments the French Government replied with great force, "that, when, on the one hand, Congress declare that France has contravened these treaties, and that the United States are released from their stipulations; and when France declares that she has conformed to these treaties, that she desires their execution, and that the United States alone have infringed them, where is the tribunal or law to enforce the exoneration in preference to the execution?

"So long as a difference exists between the two contracting parties, respecting the existence or abrogation of a treaty, no right or benefit can result to a third party from the abrogation contended for by one.

"If France had declared the treaties annulled, and the United States had maintained their validity, England would have no ground for saying to America, we succeed to the rights of France.' * * * If one of two contracting parties is at liberty, whenever he may please, to cancel his obligations in virtue of his own judgment concerning facts or men or things, no binding force can be attached to treaties, and the S. Mis. 162-VOL. II--9


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term itself should be erased from every language. If the right of anteriority can be destroyed to the prejudice of the nation that possesses it, by the sole act of one of the parties by whom that right has been recognized, it must be acknowledged as a principle, that the nation making the second treaty converts the one with whom she first contracted into an enemy, and that she may be certain of being despoiled by that enemy whenever the time may be propitious for an open expla nation."

The negotiations preceding the convention of 1800 are given in 1 Lyman's Diplomacy of U. S., chap. viii.

As to annulling by statute, see supra, § 138.

As is argued by Mr. Trescot, in his volume on American Diplomatic History (Boston, 1857), the first of these positions cannot be sustained, except as to stipulations which are reciprocally dependent. The second position, also, is inconsistent with the established rule that the Executive of a Government cannot set up its own domestic arrangements to support a diplomatic claim. The French ministers in reply said they would consent to the abrogation of the treaty of alliance and the consequent commercial treaty if such abrogation was claimed as a result of war; but in such case the claims for indemnity could no longer be maintained, since war extinguishes claims as well as treaties. The American envoys, departing in this respect from their instructions, then agreed to surrender their claims for indemnity as an equivalent for the French surrender of the privileges given in the prior treaties. The French ministers, however, refused to assent to such a surrender as long as the United States gave to Great Britain exclusive privileges in the ports of the United States. In order to avoid this new difficulty, they proposed a temporary convention, to consist of stipulations which are thus condensed by Mr. Trescot :

"1. That the parties, not being able at present to agree respecting the former treaties and indemnity, these subjects should be postponed for future negotiation, and, in the mean time, that the said treaties should have no operation.

"2. The parties shall abstain from all unfriendly acts, their commerce shall be free, and debts shall be recoverable in the same manner as if no misunderstanding had intervened.

"3. Property captured and not yet definitely condemned, or which may be captured before the exchange of ratifications, shall be mutually. restored. Proofs of ownership to be specified in the convention.

"4. Some provisional regulations to be made to prevent abuses and disputes in future cases of capture."

These stipulations being accepted as the basis of a convention, a technical difficulty was interposed by the French negotiators in a note of September 29, 1800, in which they said:

"The ministers of France insist, in relation to the treaty, upon one of three things:

"Either that the treaty shall be signed in the French language only, without any reservation, the mode pursued by the consular convention of 1788 between France and the United States, and by the treaty of 1786 between France and England;

"Or, that it shall be signed in the French language only, and that a separate article (similar to the one at the close of the treaty of 1783 between France and England) shall stipulate that the French language

used in the treaty shall not constitute a precedent, nor operate to the prejudice of either of the contracting parties;

"Or, finally, that it shall be signed in the French and English languages, accompanied by the following declaration, conforming to the one at the end of the treaty of alliance and the treaty of commerce of 1788: 'In faith whereof the respective plenipotentiaries have signed the above articles, both in the French and English languages; declaring, nevertheless, that the present treaty was originally written and concluded in the French language.""

On September 30, 1800, the convention was signed, as noticed above, by the negotiators of both contracting parties. The material articles are articles are as follows:

"ART. II. The ministers plenipotentiary of the two parties, not being able to agree at present respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further on these subjects at a convenient time, and until they have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows:

"ART. IV.-Property captured and not yet definitely condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored on the following proofs of ownership, viz: The proof on both sides with respect to merchant ships, whether armed or unarmed, shall be a passport in the form following. [Here follows a form of passport indentical with that given in the treaty of 1778.] * * This article shall take effect from the signature of the present convention; and if from the date of said signature any property shall be condemned contrary to the intent of the said convention before the knowledge of this stipulation shall be obtained, the property so condemned shall without delay be restored or paid for.

"ART. V. The debts contracted by one of the two nations with individuals of the other, or by the individuals of the one with the individuals of the other, shall be paid, or the payment may be prosecuted in the same manner as if there had been no misunderstanding between the two states. But this clause shall not extend to indemnities claimed on account of captures or confiscations."

Other clauses for the avoidance of future difficulties were introduced.

The Senate of the United States, when the treaty was before them, declined to ratify the second article, inserting in its place the following: "It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of ratifications." The treaty was returned with this amendment to the First Consul, who, on July 30, 1801, ratified it with the following conditions:

"The Government of the United States


having omitted the second article, the Government of the French Republic consents to accept, ratify, and confirm the above convention with the retrenchment of the second article: provided that by this retrenchment the two States renounce the respective pretensions which are the object of that article." The Senate of the United States, to whom the convention was returned, then resolved that they considered the said convention as duly ratified, and returned the same to the President for the

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