30th. April 1797
The Attorney General of the United States having maturely considered the questions submitted to him by the President of the United States, most respectfully reports his opinions as follows,
Upon Question 1st.
If a nation to whom a Minister Plenipotentiary is sent by another nation, refuse him residence, it is a just cause of displeasure, but if he be refused an audience and the refusal circumstanced with rudeness and indignity, the offence is more serious. The latter has been sometimes productive of war and in the opinion of some has been thought a sufficient cause of war, it being considered by them a violation of one of the perfect rights of an independent nation the right of communicating its sentiments upon what concerns its interests in a decent manner to every other nation, a right almost essential to the peace of mankind: without the exercise of which dissentions can neither be obviated nor composed? My opinion however is that to refuse even rudely an audience to a Minister if unaccompanied with other injuries is not of itself a just cause of war. Though a high offence against the rights of civilized society it need not and therefore ought not to be resented by war.
If one citizen rudely refuses to hear the conversation of another it will not justify blows. This principle ought for the sake of humanity to be applied with peculiar force to nations.
But if a state contrary to the general laws of nations and contrary to solemn treaty authorises its subjects either in explicit or equivocal terms to invade the lawful commerce of the subjects of another state by seizing on the high sea their ships and merchandize and forceably carrying away and confiscating them it is a violation of perfect right and affords just cause of war, it being lawful to use force in defence of property against unlawful attack as well as for the recovery of it after it shall have been seized, and when measures of this kind are in execution to refuse to hear the complaints or remonstrances of the injured nation is to aggravate the injury by insult and supercedes the necessity of a formal demand of satisfaction.
The decree of the republic of France of 2d. July 1796 by which the Flag of that nation “is to treat neutral vessels either as to confiscation, as to searches or capture in the same manner as they shall suffer the English to treat them” is a violation of the Treaty of Amity & Commerce between France and the United States, introduces a new and arbitrary system without their consent and therefore in its application to the United States is unwarrantable by any principle of justice or faith. This decree while it especially opposes the 12th. 13th. 14th. 15th. 23d. 24th. 25th. 26th. & 27th. articles by substituting another rule than that expressed in those stipulations must be considered as a substantial violation if not a total renunciation on the part of France of that Treaty.
This being the real situation of the two Countries the United States would be justified according to the usage of nations if they were to declare war against France. Yet as the people of the United States delight in peace and are anxious for the continuance of it, as a possibility exists that another effort to restore harmony and obtain a redress of grievances may be attended with success, as negotiation will at least defer the calamities of war, and if finally unsuccessfull will encrease the union and zeal of the citizens in the cause of their common Country, I think another mission to Paris is expedient provided it shall be supported by spirited, prudent and efficient measures of defence. Besides should war take place without another exertion to produce a reconciliation it is probable a mission to Paris would be necessary to put an end to it and I do not conceive it more humiliating to endeavour now to prevent a war than to endeavour after it has been commenced to terminate it by a Treaty of Peace.
On the contrary it may if properly conducted exhibit to the world an example of moderation honorable to the United States and to mankind useful.
This mission may be entrusted to one or three persons in the character of Envoy Extraordinary the former is preferred because there is a difficulty in finding three fit characters who are willing to undertake the charge. If one person only is employed the station may be well and conveniently filled by C.C. Pinckney against whom no objection lies, if three are to be employed Mr. Pinckney may remain at the head of the mission, his colleagues being persons indubitably attached to the political principles that will govern the President in his administration and it may be confided to any two of the three. The objects may be to remove the complaints of France by proper and satisfactory explanations of the conduct of the United States, to conclude a new treaty of Friendship Commerce and Navigation & to obtain compensation for the spoliations and injuries of every kind which the citizens of the United States have sustained under colour of authority from France either upon the high sea or within the Republic or any of its dominions. <
dominions, and lastly, to obtain payments of the debts due from the Republic to the citizens of the United States.>
2d. Question answered
The Treaty of Amity and Commerce of 1778 is so advantageous to France that after the proofs given of her dissatisfaction <
of> with it there is too much reason to beleive that no treaty can be made which will be agreeable, unless the commercial rights and interests of the United States are sacrifised to her wish of monopoly and all commerce with Great Britain and its dominions is interdicted, in a word unless the British Treaty is rescinded. Yet an attempt may be made and if France insists that the list of contraband should be the same as described in the 18th Article of the Treaty with Great Brittain let it be conceded. Further if France insist, that the principle of free ships making free goods shall be relinquished let that for the sake of peace be also conceded and such a commercial treaty be made with that nation as is expressed in the 11th. 13th. 14th. 15th. 16th. 17th. 18th. 19th. 20th. 21st. 22d. 23d. 24th. 25th. (in part) 26th. 27th. articles of the british treaty and a new article regulating the trade between the United States and the French west india islands upon the basis of general import and export of the growth produce or manufactures of the said islands and of the United States, to & from each other. The treaty to be limited to a certain number of years not exceeding twenty at most. To these may be added articles similar to the 1st. 7th. 8th. & 10th. of the british treaty, and a new article providing for the payment of the sums due from the republic to individual citizens of the United States arising from contracts, as well as for compensation for losses occasioned by embargos or other detentions of their vessels by public authority.
Perhaps it may be thought that the principle of free ships protecting enemies goods should never be surrendered. To this it is answered that it is questionable whether this principle is founded so much in justice as in the interested policy of certain nations, and whether the principle does not tend more to the disturbance than to the good of society. An eminent writer asserts that it makes it the interest of commercial states to promote dissention and war among their neighbours, in order that the profits of carrying for the belligerent nations may be enjoyed by the nation which shall be at peace. It may be asked what right has a neutral nation to be the carriers of the goods and merchandise of the subjects of a belligerent nation during a war, which during peace it had not been and would not be permitted to carry? What right has a neutral nation to protect the property of one enemy from the power of another on the high sea? What right has a neutral nation to complain of restraints on its trade, if it be permitted to carry safely the goods and merchandise of its own subjects, and be prohibited from carrying during war the merchandise of a foreign state which in times of peace it could not be permitted to carry. Is a neutral nation to insist on drawing profit from a war between its neighbours by a new traffic created by the war? If this may be the consequence of the principle, it is evidently a dangerous and inconvenient principle to the peace and harmony of the world.
Upon question 3d.
It may be reasonably doubted whether any of the articles of the treaty of Alliance are in force; supposing they are it will be wise to abolish them. Between the United States and any of the European nations there ought not to be any alliance whatsoever.
Of the treaty of amity and commerce so much of the 6th. and 7th. articles as relate to convoys need not be renewed. The connection with france should be placed on the like ground as the connection of the United States with other European nations neither more intimate nor less friendly. So much of the 14th. article as exposes the goods of either party on board of an enemy’s ship to confiscation, ought to be abolished if the principle of free bottoms making free goods be yielded. The 15th. article to be improved by requiring privateers to give security for their good conduct, & to permit individuals who shall be damaged by privateers to prosecute suits at law for compensation against the owners and master. The 17th. article to be made more plain relative to the prohibition of affording refuge in the ports of either party of the ships of an enemy who may have made prize of the other, confining it to the case when the captor comes with the prize and not otherwise.
The 23d. article to be abolished so far as the principle of free ships making free goods shall be concerned, if France insists on it; and the 24th. article to be conformed to the 18th. article of the british treaty.
The 30th. article to be abolished—
Articles similar to the 1st. 2d. 3d. 4th. 5th. 8th. 9th. 10th. 11th. 12th. 13th. 16th. 18th. 19th. 20th. 21st. 25th. 26th. 27th. 28th. 29th. and 31st. may be retained, and in there particulars the priority will of course be retained by France, though not in the new articles which may be agreed upon.
Upon question 4th.
A discussion of the consular convention is not at this time necessary as it will not expire sooner than in the year 1801. No particular objection is perceived to a discussion and should it take place some attention should be paid to the 5th. and 12th. articles. The exclusive right given to consuls and vice consuls may in some instances be attended with inconvenience and in the cases specified in the latter, the jurisdiction of the ordinary tribunals of justice is disallowed which perhaps ought not to be done. The 9th. article relative to deserters, which requires the exhibition of the registers or ships roll, may be altered so as to let in other legal and sufficient proof where those papers are not for good reason to be had. The jurisdiction of consuls ought not to be enlarged.
Upon question 5th.
In what has been stated in answers to the 2d. and 3d. questions every thing has been expressed which is thought adviseable on this subject, to which the Attorney General prays leave to refer.
Upon question 6th.
The documents to be sent to France for satisfaction of the directory, as evidences of the personal injuries and losses in property of our citizens, occasioned or done by the french ships of war and privateers on the high sea or by french <
ships>commissioners agents officers and citizens elsewhere should be affidavits of the sufferers taken before any magistrate competent to administer oaths, attested by him and authenticated by the french consul or vice consul of the district within which the magistrate resides. Should any arrangements for enquiring into compensation be made, to tribunals of this kind ought also to be produced with the affidavits, authenticated copies of the proceedings of the tribunals of justice in those cases where condemnations have been had if copies can be obtained and also copies of the protests of the masters and mates duly made, with any original papers that pertain to the claims. These last are not necessary in the present posture of affairs.
Upon question 7th.
In remonstrances against spoliations of property, capture of vessels and personal maltreatment, the terms ought to be those of candour and conciliation free from reproach & irritation, but explicit argumentative and independent. In particular the impropriety of the decree of 2 July 1796 ought to be exposed, that being the cause as it affords the apology for all the injuries sufferred in our commerce. That decree being vague and indefinite is hostile to the commerce of all neutral nations, contrary to justice and incompatable with a state of amity between France and the United States. Establishing no certain rule by which neutral nations can regulate their trade with the enemies of France and be safe, it is the instrument of protecting the most arbitrary and licentious proceedings.
Upon Question 8th.
In demanding restitution reparation compensation & satisfaction for past injuries, the United States should manifest a spirit of moderation, and a dispostion to be content with whatever shall be reasonable taking into view all circumstances. Not descending to any thing servile or dishonorable, the terms cannot be too mild temperate & civil.
Upon question 9th.
It is not incumbent upon the United States to demand payment of the debts due to their citizens for property sold to the French government. The contracts were made by the citizens of their own free will, and if the French government never comply on their part, there is no positive obligation on the government of the United States to interfere. These are of the nature of private transaction to which the sovereign power need not be extended and in which it can interfere only by entreaty and solicitation. In a general adjustment of differences there may however be an opportunity not to be missed of assisting our citizens in this manner to the payment of what is due to them. This subject may perhaps be most wisely left to the discretion of the envoy, whether it will be proper even to mention it or to interfere about it even in the mode just stated. Further he ought not to go.
Upon question 10th.
A demand ought to be made of the French government for payment of vessels and cargoes taken on the high sea either by ships of war or private ships, contrary to the treaty of 1778, which have been condemned contrary to that treaty and confiscated. The demand should be extended also to property which against the will of the American owners have been seized and applied to public use, in any of the french ports whither it had been lawfully carried.
Upon question 11th.
A commission of enquiry and arbitration like that with England may be agreed to. No better mode of adjusting such matters is at present thought of.
Upon question 12th.
It may be offerred to France to make alterations in the treaty of 1778 of amity and commerce, so that the british treaty, and the treaties with France relative to commerce may be substantially alike, France retaining priority of date as to all the articles of the treaty of 1778 which shall not be altered. For this no compensation is to be required, further than what will arise from reciprocity, a limitation of the duration of the treaty, and a free intercourse between the United States and the West indies.
Upon question 13th.
A project of a new treaty altering the old treaty of amity and commerce in certain particulars and leaving a part of the old treaty in force, as has been in the answers to the 2d. and 3d questions set forth, may be proposed to France if the envoy shall find it prudent or useful to do so, to whom in the instructions to be given, the President will mark out the line of conduct to be pursued. The consular convention may be drawn into discussion or not as the Envoy may think best; it being deemed of secondary consequence. If it should be brought up, what has been already remarked, is all that occurs at this time which deserves notice. As to the treaty of alliance, it ought not to be mentioned but for the purpose of formal abolition. Perhaps there is no occasion to make a formal proposition, because if nothing is said upon it it may be considered as of little moment, if not extinct—The public mind which has been wandering so far from America, is now returning home; if left to itself, the fascination which has so unaccountably ensnared it, may vanish, and its discernment of the true interests of this country, will in due time arrive to rescue the United States from real dependance on a foreign power. If an open proposition be now made to terminate the alliance with france; it would be ill received, although in truth it is either terminated, or if existing the people have no inclination actually to perform it <
[. . .] to be performed> and are discharged from the performance as things now stand. If France shall return to a sense of justice, compensate for injuries received, revoke the decree of 2 July 1796 and conform to the laws of nations and the treaty with us which shall be in force, all will be well, though the alliance is passed over in silence: on the other hand if she perseveres in her present system, it will be the duty of Congress to declare by a solemn resolution that the treaties and consular convention with France are no longer obligatory on the United States, and their conduct should be accordingly regulated by this new state of things. If the alliance treaty, can be abolished without a direct proposition from us, let it be done, for with no European power ought the United States to have a perpetual or even a temporary alliance, of any sort whatever, either defensive or offensive.
Upon question 14th.
A project of a new treaty ought not to be laid before the senate for their advice and consent, for several reasons.
First because the Precedent ought to be avoided, if done at one time it would be expected always.
Secondly because it would disclose to the foreign nation, the ultimate terms to which this nation would go; for it is not to be expected that they would remain secret, when known to so many as compose the senate among whom divisions exist and some of whom hold it a duty to publish whatever concerns the people not only to them but to the world.
Thirdly because no project consistent with the honour and interest of this country can be proposed at this time which will be satisfactory to the senate and to France too. They are so wide in their ideas and principles that if ever they meet, it must be in process of time which is constantly producing new events. A project of this kind then if laid before the senate and approved by them, would encrease the chance of disappointment in the mission, in proportion as the powers of negotiation are restrained and the sentiments of the senate are publickly known.
In the critical situation of things the best mode seems to be, to communicate in explicit instructions, what stipulations the envoy may make and what he must not agree to if proposed by France.
All which is most humbly submitted
MHi: Adams Papers.