To John Jay
Philadelphia April 9
When we last conversed together on the subject we were both of opinion that the Minister expected from France should be received.1
Subsequent circumstances have perhaps induced an additional embarrassment on this point and render it adviseable to reconsider the opinion generally and to raise this further question—Whether he ought to be received absolutely or with qualifications?
The King has been decapitated. Out of this will arise a Regent, acknowleged and supported by the Powers of Europe almost universally—in capacity to Act and who may himself send an Ambassador to the United States. Should we in such case receive both? If we receive one from the Republic & refuse the other, shall we stand on ground perfectly neutral?
If we receive a Minister from the Republic, shall we be afterwards at liberty to say—“We will not decide whether there is a Government in France competent to demand from us the performance of the existing treaties. What the Government in France shall be is the very point in dispute. ’Till that is decided the applicability of the Treaties is suspended.2 When that Government is established we shall consider whether such changes have been made as to render their continuance incompatible with the interest of the U States.” If we shall not have concluded ourselves by any Act, I am of opinion, that we have at least a right to hold the thing suspended till the point in dispute is decided. I doubt whether we could bona fide dispute the ultimate obligation of the Treaties. Will the unqualified reception of a Minister conclude us?
If it will ought we so to conclude ourselves?
Ought we not rather to refuse receiving or to receive with qualification—declaring that we receive the person as the representative of the Government in fact of the French Nation reserving to ourselves a right to consider the applicability of the Treaties to the actual situation of the parties?
These are questions which require our utmost Wisdom. I would give a great deal for a personal discussion with you. Imprudent things have been already done; which renders it proportionably important that every succeeding step should be well considered.
With true attachment Dr sir Your obedt Ser
ALS, Columbia University Libraries.
1. Edmond Charles Genet was appointed in November, 1792, to replace Jean Baptiste de Ternant as French Minister to the United States. Genet arrived in Charleston, South Carolina, on April 8, 1793.
2. A number of the provisions of the two 1778 American treaties with France complicated the diplomatic position of the United States after the outbreak of the European war in 1793. Most serious was Article 11 of the Treaty of Alliance, which provided that the “two Parties guarantee mutually from the present time and forever, against all other powers, to wit, the united states to his most Christian Majesty the present Possessions of the Crown of france in America as well as those which it may acquire by the future Treaty of peace: and his most Christian Majesty guarantees on his part to the united states, their liberty, Sovereignty, and Independence absolute, and unlimited, as well in Matters of Government as commerce and also thair Possessions, and the additions or conquests that their Confederation may obtain during the war, from any of the Dominions now or heretofore possessed by Great Britain in North America, conformable to the 5th. & 6th articles above written, the whole as their Possessions shall be fixed and assured to the said States at the moment of the cessation of their present War with England.” Article 12 of the same treaty provided that the guarantee in Article 11 should take effect in the event of war between France and Great Britain (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 39–40).
In addition to this American guarantee of the French West Indies, the following articles of the Treaty of Amity and Commerce concerning the mutual rights and obligations of the two powers in time of war were considered most likely to affect the United States position in relation to other European nations: Articles 14 and 23 (originally Articles 16 and 25), by which the signatories subscribed to the rule of free ships–free goods, enemy ships–enemy goods; Article 17 (originally Article 19), which provided that “It shall be lawful for the Ships of War of either Party & Privateers freely to carry whithersoever they please the Ships and Goods taken from their Enemies, without being obliged to pay any Duty to the Officers of the Admiralty or any other Judges; nor shall such Prizes be arrested or Seized, when they come to and enter the Ports of either Party; nor shall the Searchers or other Officers of those Places search the same or make examination concerning the Lawfulness of such Prizes, but they may hoist Sail at any time and depart and carry their Prizes to the Places express’d in their Commissions, which the Commanders of such Ships of War shall be obliged to shew: On the contrary no Shelter or Refuge shall be given in their Ports to such as shall have made Prize of the Subjects, People or Property of either of the Parties; but if such shall come in, being forced by Stress of Weather or the Danger of the Sea, all proper means shall be vigorously used that they go out and retire from thence as soon as possible”; Article 19 (originally Article 21), which provided for the supply and reparation of ships forced into the ports of either power by disaster; Article 21 (originally Article 23), which provided that no subjects of either power should “apply for or take any Commission or Letters of marque for arming any Ship or Ships to act as Privateers” against the other, “And if any Person of either Nation shall take such Commissions or Letters of Marque he shall be punished as a Pirate”; Article 22 (originally Article 24), which provided that “It shall not be lawful for any foreign Privateers, not belonging to Subjects of the most Christian King nor Citizens of the said United States, who have Commissions from any other Prince or State in enmity with either Nation to fit their Ships in the Ports of either the one or the other of the aforesaid Parties, to sell what they have taken or in any other manner whatsoever to exchange their Ships, Merchandizes or any other lading; neither shall they be allowed even to purchase victuals except such as shall be necessary for their going to the next Port of that Prince or State from which they have Commissions”; Article 24 (originally Article 26), which defined contraband goods; and Article 25 (originally Article 27), which concerned the issuance of passports to ships of the signatory powers (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 12–24).
The Treaty of Amity and Commerce originally contained thirty-three articles but, as Hunter Miller points out, soon after 1779, “and certainly from 1781 on, the prints of the treaty omit Articles 11 and 12 [concerning a reciprocal commercial arrangement] from the text and renumber the articles following so that original Article 13 becomes 11, and so on; indeed the signed treaty has, in pencil, a marginal note to Articles 11 and 12, reading ‘to be omitted, & the subsequent numbers changed accordingly.’ … The congressional ratification of May 4, 1778, was complete and unconditional. The next day, however, Congress … expressed the desire that Articles 11 and 12 ‘be revoked and utterly expunged.’ … While the American Commissioners were instructed accordingly, their formal authority was not at hand on July 17, 1778, and the ratifications then exchanged recited the entire treaty; although at that time the omission of the two articles received the verbal assent of Count de Vergennes.… Under date of September 1, 1778, Articles 11 and 12 were formally suppressed …” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 32–33). References in documents written during the seventeen-nineties to specific articles of the Treaty of Amity and Commerce frequently reflect this confusion in numbering.