« PreviousContinue »
the want of a sea-letter should not of itself be a cause of confiscation, where other reasonable proof of property is produced; and where such proof is furnished, the want of a sea-letter should go no further than to save the captor from damages for detaining and bringing in the neutral vessel. The proportion of the vessel's crew which may be foreigners should be agreed on. Perhaps it will be expedient to introduce divers other regulations conformably to the marine laws of France. Whenever these are to operate on the commerce of the United States, our safety requires that, as far as possible, they be fixed by treaty. And it will be desirable to stipulate against any ex post facto law or regulation, under any pretence whatever.
Great-Britain has often claimed a right, and practised upon it, to prohibit neutral nations carrying on a commerce with her enemies which had not been allowed in time of peace. On this head, it will be desirable to come to an explicit understanding with France; and if possible, to obviate the claim by an express stipulation.
Such extensive depredations haye been committed on the commerce of neutrals, and especially of the United States, by the citizens of France, under pretence that her enemies (particularly Great-Britain) have done the same things, it will be desirable to have it explicitly stipulated, that the conduct of an enemy towards the neutral power shall not authorize or excuse the other belligerent power in any departure from the law of nations or the stipulations of the treaty especially that the vessels of the neutral nation shall never be captured or detained, or their property confiscated or injured, because bound to or from an enemy's port, except the case of a blockaded port, the entering into which may be prevented according to the known rule of the law of na tions. And it may be expedient to define a blockaded place or port to be one actually invested by land or naval forces, or both, and that no declaration of a blockade shall have any effect without such actual investment. And no commercial right whatever should be abandoned
which is secured to neutral powers by the european law of nations.
The foregoing articles being those which the French Government has made the ostensible grounds of its principal complaints, they have naturally been first brought into view. But the proposed alterations and arrangements suggest the propriety of revising all our treaties with France. In such revision, the first object that will attract your attention, is the reciprocal guaranty, in the eleventh article of the treaty of alliance. This guaranty we are perfectly willing to renounce. The guaranty, by France, of the liberty, sovereignty, and independence of the United States, will add nothing to our security; while, on the contrary, our guaranty of the possessions of France in America, will perpétually expose us to the risque and expense of war, or to disputes and questions concerning our national faith.
When Mr. Genet was sent as the minister of the French Republic to the United States, its situation was embarrassed, and the success of its measures problematical. In such circumstances it was natural that France should turn her eye to the mutual guaranty and accordingly it was required, in Mr. Genet's instructions, to be an essential clause in the new treaty," which he was to propose: and on the ground "that it nearly concerned the peace and prosperity of the french nation, that a people whose resources increase beyond all calculation, and whom nature had placed so near their rich colonies, should become interested, by their own engagements, in the preservation of those islands." But at this time, France, powerful by her victories, and secure in her triumphs, may less regard the reciprocal guaranty, with the United States, and be willing to relinquish it. As a substitute for the reciprocal guaranty may be proposed a mutual ronunciation of the same territories and possessions, that were subjects of the guaranty and renunciation in the sixth and eleventh articles of the treaty of alliance. Such a renunciation on our part, would obviate the reason assigned in the instruction to Mr. Genet before cited, of future
danger from the rapidly growing power of the United States. But if France insists on the mutual guaranty, it will be necessary to aim at some modification of it.
The existing engagement is of that kind which, by writers on the law of nations, is called a general guaranty; of course the casus fœderis can never occur except in a defensive war. The nature of this obligation is understood to be, that when a war really and truly defensive exists, the engaging nation is bound to furnish an effectual and adequate defence, in co-operation with the power attacked: whence it follows, that the nation may be required, in some circumstances, to bring forward its whole force. The nature and extent of the succours demandable not being ascertained, engagements of this kind are dangerous on account of their uncertainty there is always hazard of doing too much or too little, and of course of being involved in involuntary rupture.
Specific succours have the advantage of certainty, and are less liable to occasion war. On the other hand, a general guaranty allows a latitude for the exercise of judgment and discretion.
On the part of the United States, instead of troops or ships of war, it will be convenient to stipulate for a moderate sum of money or quantity of provisions, at the option of France: the provisions to be delivered at our own ports, in any future defensive wars. The sum of money, or its value in provisions, ought not to exceed two hundred thousand dollars a year, during any such wars. The reciprocal stipulation, on the part of France, may be to furnish annually the like sum of money, or an equivalent in military stores and cloathing for troops, at the option of the United States, to be delivered in the ports of France.
Particular caution, however, must be used, in discussing this subject, not to admit any claims, on the ground of the guaranty, in relation to the existing war; as we do not allow that the casus foederis applies to it. And if the war should continue after your arrival in France, and the question of the guaranty should not be
(16 mentioned on her part, you may yourselves be silent on the subject, if you deem it most prudent.
It will be proper here to notice such articles of the treaty of amity and commerce, between the United States and France, as have been differently construed by the two governments, or which it may be expedient to amend or explain.
ARTICLE 2. The assent of the United States, in their treaty with Great-Britain, to the doctrine of the law of nations respecting enemies' property in neutral ships, and ship timber and naval stores, and in some cases provisions, as contraband of war, the French Government has chosen to consider as a voluntary grant of favours, in respect to commerce and navigation, to Great-Britain, and that consequently the same favours have become common to France. This construction is so foreign from our ideas of the meaning and design of this article, it shews the necessity of reviewing all the articles, and however clear they may appear, of attempting to obviate future misconstructions, by declaratory explanations or a change of terms.
ARTICLE 5. France has repeatedly contended, that the imposition of fifty per cent. per ton, on french vessels arriving in the United States, is contrary to the fifth article of the treaty. The arguments in support of this pretension are unknown; but it is presumed to be unfounded. The reciprocal right of laying "duties or imports of what nature soever," equal to those imposed on the most favoured nations, and without any other restrictions, seems to be clearly settled by the third and fourth articles. The fifth article appears to have been intended merely to define or qualify the rights of american vessels in France. It is however desirable that the question be understood, and all doubt concerning it removed. But the introduction of a principle of discrimination between the vessels of different foreign nations, and in derogation of the powers of Congress to raise revenue by uniform duties on any objects whatever, cannot be hazarded. The naturalization of french vessels will of course be considered as inadmissible.
ARTICLE 8. The stipulation of doing us good offices, to secure peace to the United States with the barbary powers, has never yet procured us any advantage. If therefore the French Government lays any stress on this stipulation, as authorizing a claim for some other engagement from us in favour of France, it may be abandoned; and especially if its abrogation can be applied as a set-off against some existing french claim.
ARTICLE 14. If the alterations already proposed aremade in the 23d and 24th articles, then the 14th article, as before observed, must be abolished.
ARTICLE 17th. The construction put on this article, by the Government of the United States is conceived to be reasonable and just, and is therefore to be insisted on. The tribunals of the respective countries will consequently be justified in taking cognizance of all captures made within their respective jurisdictions; or by illegal privateers; and those of one country will be deemed illegal which are fitted out in the country of the other remaining neutral: seeing to permit such arming would violate the neutral duties of the latter.
It will be expedient to fix explicitly the reception to be given to public ships of war of all nations. The french ministers have demanded, that the public ships of the enemies of France, which at any time, and in any part of the world, had made prize of a french vessel, should be excluded from the ports of the United States; although they brought in no prize with them. In opposition to this demand, we have contended that they were to be excluded only when they came in with french prizes. And the kind of asylum to be afforded in all other circumstances, is described in Mr. Jefferson's letter to Mr. Hammond, dated the 9th of September, 1793, in the following words: "Thus then, the public ships
of war of both nations [english and french] enjoy a perfect equality in our ports; 1st, in cases of urgent necessity; 2d, in cases of comfort or convenience; and 3d, in the time they choose to continue." And such shelter and accommodation are due to the Tome III.