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ARTICLE 8. The stipulation of doing us good otfices, 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 The tribunals of the respective countries will con◄ sequently 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
public ships of all nations, on the principle of hospitality among friendly nations.
It will also be expedient explicitly to declare that the right of asylum stipulated for the armed vessels of France and their prizes, gives no right to make sale of those prizes.
But when prize ships are so disabled as to be incapable of putting to sea again, until refitted, and when they are utterly disabled, some provision is necessary relative to their cargoes. Both cases occurred last year. The government permitted, though with hesitation and caution, the cargoes to be unloaded, one of the vessels to be repaired, and part of the prize goods sold, to pay for the repairs, and the cargo of the vessel that was found unfit ever to go to sea again, was allowed to be exported as prize goods, even in neutral bottoms. The doubts on these occasions arose from the 24th article of the british treaty, forbidding the sale of the prizes of privateers, or the exchanging of the same in any manner whatever. But as french prizes were entitled to an asylum in our ports, it was conceived to be a reasonable construction of it, to allow of such proceedings as those above mentioned, to prevent the total loss of vessels and cargoes. The 25th article of the british treaty demands attention; as it is therein stipulated, that no future treaty shall be made that shall be inconsistent with that or the 24th article. Another doubt arose, whether the british treaty did not, in good faith, require the prohibition of the sale of prizes made by the national ships of France, as well as of those made by her privateers ; especially seeing our treaty with France gave her no right to sell any prizes whatever: but upon the whole, it was conceived that the United States having before allowed the sale of prizes, and the prohibition in the 24th article of the treaty being distinctly pointed against the sale of the prizes of privateers, it was thought proper to permit the former practice to continue, until the Executive should make and publish a prohibition of the sale of all prizes, or that Congress should pass a prohi bitory law.
ARTICLE 22d. If in new modelling the treaty with France, the total prohibition of the sale of prizes in the ports of the party remaining neutral should not be agreed on, at least the right of each power to make at its pleasure such prohibition, whether they are prizes of national ships or privateers, should be acknowledged, for the reason more than once suggested-to prevent a repetition of claims upon unfounded constructions; such as under the present article, that a prohibition to an encmy of either party, is a grant to the other of the thing forbidden.
ARTICLES 23d and 24th. These have been already considered, and the alterations proposed have been mentioned.
There have been so many unjust causes and pretences assigned for capturing and confiscating american vessels, it may perhaps be impossible to guard against a repetition of them in any treaty which can be devised. To state the causes and pretences that have been already advanced by the Government of France, its agents and tribunals, as the grounds of the capture aud condemnation of american vessels and cargoes, would doubtless give pain to any man of an ingenuous mind, who should be employed on the part of France to negociate another treaty, or a modification of the treaties which exist. It is not desired, therefore, to go farther into detail on these matters, than shall be necessary to guard, by explicit stipulations, against future misconstructions and the mischiefs they will naturally produce.
Under pretence that certain ports were surrendered to the English by the treachery of the french and dutch inhabitants, Victor Hugues and Lebas, the special agents of the Executive Directory, at Guadaloupe, have declared that all neutral vessels bound to or from such ports shall be good prize.
Under the pretence the British were taking all neutral vessels bound to or from french ports, the french agents at St. Domingo (Santhonax and others) decreed that all american vessels bound to or from english ports,
should be captured; and they have since declared such captured vessels to be good prize. The french consuls in Spain have, on the same ground, condemned a number of american vessels, merely because they were destined to, or coming from an english port.
Under the pretence, that the sea-letters or passports prescribed by the commercial treaty for the mutual advantage of the merchants and navigators of the two nations, to save their vessels from detention and other vexations, when met with at sea, by presenting so clear a proof of the property, are an indispensible document to be found on board, the French confiscate american vessels des/titute of them, even when they acknowledge the perty to be american.
Because horses and their military furniture, when destined to any enemy's port, are by the 24th article of the commercial treaty declared contraband, and as such by themselves only liable to confiscation, Hugues and Lebas decreed all neutral vessels, having horses or any other contraband goods on board, should be good prize; and they accordingly condemned vessels and cargoes.
The ancient ordinances of the french monarchs required a variety of papers to be on board neutral vessels, the want of any one of which is made a cause of condemnation; although the 25th article of the commercial treaty mentions what certificates shall accompany the merchant vessels and cargoes of each party, and which, by every reasonable construction, ought to give them protection.
It will therefore be advisable to guard against abuses by descending to particulars: to describe the ships papers which shall be required, and to declare that the want of any other shall not be a cause for confiscation: to fix the mode of manning vessels as to the officers, and the proportion of the crews who shall be citizens; endeavouring to provide, in respect to american vessels, that more than one third may be foreigners. This provision will be important to the Southern States, which have but few native seamen.
The marine ordinances of France will show what
regulations have been required to be observed by allied as well as neutral powers in general to ascertain and secure the property of neutrals. Some of these regulations may be highly proper to be adopted; while others may be inconvenient and burthensome. Your aim will be to render the documents and formalities as few and as simple as will consist with a fair and regular commerce.
ARTICLES. 25 and 27. These two articles should be rendered conformable to each other. The 27th says, that after the exhibition of the passport, the vessel shall be allowed to pass without molestation or search, without giving her chace, or forcing her to quit her intended Gourse. The 25th requires that besides the passports, vessels shall be furnished with certain certificates, which of course must also be exhibited. It will be expedient to add, that if in the face of such evidence, the armed vessel will carry the other into port, and the papers are found conformable to treaty, the captors shall be condemned in all the charges, damages and interests thereof, which they shall have caused. A provision of this nature is made in the eleventh article of our treaty with the United Netherlands.
ARTICLE 28. The prohibited goods here mentioned have no relation to contraband; but merely to such as by the laws of the country are forbidden to be exported. Yet in the case of exporting horses.from Virginia, which no law prohibited, in the winter of 1796, this article was applied by the french minister to horses, which by the french treaty are contraband of war. And a letter from the Minister to Victor Hugues and Lebas, informing them that the American Government refused to prevent such export of horses by the British, is made one ground for their decree above mentioned..
ARTICLE 30. The vessels of the United States. ought to be admitted into the ports of France in the same manner as the vessels of France are admitted into the ports of the United States. But such a stipulation ought not to authorize the admission of vessels of either party into the ports of the other, into which the ad