France and America2
We have seen in the Gazette on Monday last, the result, as given under the Paris head of August the 8th, of the negociation between our Commissioners and the French Government. It seems, it has failed, and is for the present, suspended, the reasons of which are assigned. This account of the matter, tho without an official stamp, has strong marks of being an enunciation by authority of the French government.
It is not improbable, that the leading points in the statement are true; and considering the quarter from which it comes, and the views to be answered, it is not deficient in moderation. There are, however some discolourings, and several artful terms, of a nature to mislead the public opinion of this country, which may require an antidote by a fair explanation. This shall be offered.
After a preliminary view of the subjects discussed in the negociation, it is stated in the sequel, that “the negociation turned on three points.”
1. The continuance in force, or the modified renewal of the Treaty of 1778.3
This point (it is alledged) was waved by France, in consequence of the assurance of our envoys that they could not renew it.4
2. The principle of compensation for illegal captures.
This point (it is said) France offered to admit. But on conditions only that the Treaty of 1778 should be renewed, with the modifications contained in the instructions given by Washington.5
3. The 25th article of the Treaty between the United States and Great-Britain,6 relative to the protection granted to the armed vessels of that nation.
France (it is said) will probably insist upon enjoying the same advantage as long as it is possessed to her injury by her enemy.
It is mentioned as supplementary, that
“There is another principle which France was anxious to establish, namely, That neutral bottoms should constitute neutral property.”7 But that our treaty of 1798, with Great Britain, prevented our acceding to this system.8
On the very face of the statement, as to the two first points, we discover a stroke of French finesse.
France, it is pretended waved the point of a continuance of modified renewal of the treaty of 1778, upon the assurance of our Envoys that they could not renew it: Yet we are informed in the next sentence that acceding to the principle of compensation for illegal captures, she did it upon the express condition only that the treaty of 1778 should be renewed with modifications.
That is to say, she waved the modified renewal of the treaty of ’78, upon the condition that the United States would wave their claim of compensation for illegal captures—a claim by herself admitted to be just.
This, it must be confessed, was an odd method of waving. It was more properly an attempt to barter a bad debt for a good one, a nullity (in other words a treaty which for these very illegal captures in violation of it, and for other injuries had been rightfully declared void) for a valid claim equal to 20,000,000 of dollars.
The argument by which it is intended to color this subterfuge is this:
“That as the twin nations had never been in a state of war with each other, the treaty of 1778 could not have been annuled without the consent of both.”9
But there is not a writer on the law of nations, who will not inform the French Government, that when one party to a treaty violates the compact in any material article, the other party is free to annul the whole.
France, before she had the least pretence of complaint against the U. States, had infringed the Treaty in some of its essential points especially the famous provision now again so much vaunted, that neutral bottoms shall constitute neutral property;10 and she went on increasing her violations down to the period of abrogating the treaty in this country: than which no national measure was ever justified by more cogent reasons.
But it isserted that this treaty is the only basis of our claim to compensation. This position is as unfounded as the other.
France, in her revolutionary phrenzy, denied the existence of a Law of Nations.11 Returned (as is hoped) to reason, she at present recognizes that law, and promises to be governed by it.
Then, as the greater part of the captures of which we complain were unjust and illegal; not by the peculiar stipulations of the treaty of ’73,12 but by the general law of Nations—it is plain that as to them our claim to compensation is independent of, and paramount to the treaty.13
It follows that the ground which has been taken by France, in this particular, is untenable.
Further—as to the 25th article of the treaty, between the United States and Great-Britain, relative to the protection granted to the armed vessels of that nation.
Towards a clear understanding of this point it may be necessary to remind the public of some facts:
Our treaty with France already mentioned in the 17th article, contains stipulations equivalent to the 25th article of our treaty with Great-Britain.
As this article has an express saving of prior existing treaties, France was left by the treaty with Great-Britain in full posessession of the privileges in this respect which our treaties with them had granted.
The consequence was that France being at war with Great-Britain, might bring prizes made from the latter, into our ports, while British ships could not enter with prizes made from France. France, therefore, had no cause to complain of the article in question. It left her where she was before, and with a privilege not enjoyed by Great-Britain.
If the case is now altered, and Great-Britain has acquired the preference which before belonged to France—it is by accident, or, more properly speaking, by the fault of France, whose violence drove our government to the abolition of our treaty with her—thereby transferring to our treaty with Great-Britain, the advantages of priority, which formerly were attached to our treaty with France.
This priority, therefore occasioned by the misconduct of France, ought not to have been an obstacle to the formation of a treaty with us, which, in other respects, should have been the same as our treaty with Great-Britain. And doubtless it will appear hereafter, that our Envoys were authorised to offer, and did offer, such a treaty.14
This circumstance ought the less to have been an obstacle, because the 25th is one of the articles of our Treaty with Great-Britain, which, by its own limitation, will expire in 12 years after the making of it, that is, in the year 1807.
Again—As to the principle, that neutral bottoms should make neutral property, which, it is said, France was anxious to establish—
It is not true, as alledged, that our treaty with Great-Britain was an impediment to our establishing that principle with France; unless it was meant to do more than was done by the treaty of 1778.
It is clearly shewn by Mr. Jefforson, in his correspondence on the subject, and has been otherwise amply demonstrated, that this treaty did nothing more than adopt the principle as a rule to be observed, between the United States and France, with regard to each other when one was at peace, the other at war—that it did not bind either party to enforce or insist upon the rule as against other nations.15
If more was desired by France at this time; if it was meant that we were to agree to insist upon the rule as against other nations—it is evident that this was nothing more nor less than an attempt to involve us in war with Great Britain.
As a violation of our treaty with her, this would have been the natural consequence; as an attempt to change, by force, the present law of nations in a point which she is deeply interested to maintain, the same consequence was to be expected.
This would be another specimen of the old policy—War with Great Britain, as the price of friendship with France.
It is not unlikely that our Envoys have been instructed to decline in any shape, the stipulation, that neutral bottoms should make neutral property; and if they were, the instruction was a perfectly wise one.16
Experience has shewn, in the conduct of France herself towards the United States, that is a stipulation not to be relied upon; too contrary to the spirit of maratime war to be observed—and that the most probable effect of making it, will always be to introduce a germ of contention between the parties to the contract. It has been a cause of extreme embarrassment to us in the prese[n]t war.
An unwillingness to repeat the experiment of this contentious innovation, ought certainly to have been no obstacle to a Treaty with the very power which has given us proof that it was worse than nothing, and taught us the necessity of distrusting it.
Hence we perceive the unreasonableness and futility of the ostensible motives which, on the part of France, have obstructed a treaty with the United States.
Let us now conjecture the true reasons of the failure of negociation. They were—1. The hope that an unsettled state of things between the two countries might favor, in the approaching election of Chief Magistrate the choice of person more complaisant to the views of France, namely Mr. Jefferson. 2. The expectation that with him a bargain more advantageous to France would be made than with our present executive.
Will the people of the United States be the dupes of this scheme? Will they think it their interest to elevate to the head of the Government a man with whom France expects to make such a bargain as will suit her purpose, after the repeated proofs they have had of the wish of France to entangle them in her interest, and embroil them with other nations? Why should they do this.
Things are now upon a good footing. A treaty, it is true, has not been made: but if we are to credit the French statement, their depredations on our commerce are to cease, and our neutral rights are in future to be respected.17 It is therefore in our option to have peace in fact with France, though not by treaty; and if she keeps her word (the only security a Treaty would give us) we shall be as well off (except in the article of compensation for captures)18 as if a treaty had been made.
In little more than six years the parts of our treaty with Great Britain respecting external commerce and navigation will expire. We can then stand both with France and her upon new ground, and, it is matter of indifference whether we ever again have a commercial treaty with either of them, unless upon better terms than heretofore. The trade between us and them may as well be left to regulate itself till bargains more positively advantageous for us can be made.
The getting rid, on fair ground, of the Guarantee of the French West Indies in our Treaty of Alliance with France,19 is a point of substantial interest gained to the U. States.
We observe that an attempt was made to revive this Guarantee in a qualified form; whether this revival was urged as an ultimatum or not does not appear.20 It is probable that it has been a very serious point with France. And the reasons which induce her to desire it, ought to induce the United States to avoid it. The Guarantee as it formerly stood, would have engaged this Country in every maratime war in which France was a defensive party. Commuted for a pecuniary aid, it would cost them a large sum of money in every such case, and would be hazardous to their peace.
President Washington wisely proposed the substitute when the treaties were yet in force.21 But France would not then listen to the moderate prepositions of this great man. Now, that the treaties are at an end, in consequence of French aggressions, we ought not voluntarily to resume so serious an incumbrance. It would be far better for the United States to compensate their own citizens for losses by French spoliations.
On this head it is to be observed, That nothing more than a promise of compensation could at present have been expected from France, with the best intentions on our part. The state of her finances does not permit more. The enjoyment of the boon must have been in future. In all probability, by patience and perseverance a more convenient opportunity will occur for a favorable settlement of the matter, and early enough to meet the resources of France for payment.
In the interim, let our government take preparatory measures; such as will thoroughly sift and ascertain the claims which ought to be compensated; and by this expedient the affair will be refined for definitive negociation, and little, if any time, will be lost.
As to the rest, a single and obvious course of conduct presents itself. Let hostilities on the part of the United States cease, and let the two countries pass into a state of peace in fact on the basis of the laws of nations. In this position it will be seen whether France is sincere, and at the same time able to execute her assurance that our rights, as a neutral nation, will hereafter be respected.
But in doing this, let us take care that we are not found hereafter unprepared. Let effectual measures be taken to increase our means of future resistance; if again we shall be compelled to protect our rights and defend our commerce by force. The posture of Europe is still eventful—eventful beyond all human calculation. Absurd indeed must be that American who will rest the safety of his country on any other foundation than her own ability to repel violence.
2. The [New York] Spectator, October 8, 1800.
3. For the Franco-American treaty of Amity and Commerce, February 6, 1778, see Miller, Treaties, II, 1–34.
4. On April 11, 1800, the United States envoys wrote to the French ministers: “The expectation of the undersigned, with regard to commerce, is not to renew or amend the former treaty, but to propose a new one …” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 315). See Article XXI of Timothy Pickering’s instructions to the envoys, dated October 22, 1799 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 304). At a meeting held on July 11, 1800, Joseph Bonaparte, the head of the French mission, informed the envoys “that it was the decided opinion of the Premier Consul that the ancient treaties ought to be the basis of the negotiation; that compensation could only be a consequence of the existence of the treaties, and the re-establishment under them of the former privileges and relations …” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 327–28). See also the French ministers to the United States envoys, May 6, 1800, and the journal of the envoys under the date of May 23, 1800 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 319, 325).
6. For the text of Article 25 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 74.
7. This principle had been established in Article 23 (originally 25) of the Franco-American Treaty of Amity and Commerce, February 6, 1778. The article reads in part: “And it is hereby stipulated that free Ships shall also give a freedom to Goods, and that every thing shall be deemed to be free and exempt, which shall be found on board the Ships belonging to the Subjects of either of the Confederates, although the whole lading or any Part thereof should appertain to the Enemies of either, contraband Goods being always excepted” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 20–21).
8. The date is incorrect. The Jay Treaty was signed on November 19, 1794 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 245–74).
According to Article 17 of the Jay Treaty, a belligerent nation had the right to remove its enemy’s goods from a neutral vessel. For the text of Article 17, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 59. For a discussion of Article 17, see “The Defence No. XXXI,” December 12, 1795. In addition, Article XXIV of Pickering’s instructions to the United States envoys, dated October 22, 1799, provided in part: “When one of the parties shall be engaged in war, the vessels of the other may be captured on just suspicion of having on board property belonging to the enemy of the former, or of carrying to the enemy any of the articles which are contraband of war” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 305).
9. On July 23, 1800, the United States envoys wrote to the French ministers concerning their last two conferences. The letter reads in part: “To the still further suggestion that the law of nations admitted a dissolution of treaties only by mutual consent or war, it was remarked by the undersigned, that their conviction was clearly otherwise; and that Vattel, in particular, the best approved of modern writers, not only held that a treaty violated by one party might for that reason be renounced by the other, but that, when there were two treaties between the same parties, one might be rendered void in that way, and the other remain in force: whereas, when war dissolves, it dissolves all treaties existing between the parties at the time” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 328). In their response, dated July 27, 1800, the French ministers added a footnote which reads: “The act of Congress of July 9, 1798, is the declaration of one of two parties, but the treaties were the work of two. A compact formed by two can be destroyed by one in no other way except by war and victory” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 330). As for Vattel, the French ministers wrote in the same letter: “The opinion of Vattel can only be understood of a nullity in point of right, not of a nullity in fact: and it is only a nullity in fact that can give an opening, respecting the claims of anteriority, to rights resulting to a third party” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 330). In ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations II, 330, the translation of the French ministers’ letter of July 27 is incorrectly dated August 26. The statute referred to is dated July 7, not July 9, and is entitled “An Act to declare the treaties heretofore concluded with France, no longer obligatory on the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845). description ends 578). For this statute, see Uriah Tracy to H, May 17, 1798; Rufus King to H, July 2, 1798, note 1. For the United States envoys’ reference to Vattel, see Emeric de Vattel, Law of Nations, or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760), Book III, Ch. X, Sec. 175).
10. For the French decrees and resolutions issued in violation of the Franco-American Treaty of Amity and Commerce, see H to Pickering, January 23, 1797, March 17, 1798; Pickering to H, January 30, 1797; H to George Washington, January 19, 1797; King to H, April 2, 1797. See also “The Warning Nos. V and VI,” March 13, 27, 1797.
11. The French policy concerning the law of nations is described in a manifesto issued by Holy Roman Emperor Francis II and King Frederick William II of Prussia against the French Revolution on August 4, 1792. The manifesto reads in part: “The decrees which have deprived the King of the right of making peace and war, have at once dissolved all those treaties which connected his most Christian Majesty with all the neighbouring princes. The revolution gives to the usurping assembly the right of renouncing such treaties as are contrary to his views, while it takes from his Majesty the means of supporting those which might be beneficial to him. According to these principles, it has no more political ties than those which it chooses to approve, and it is consequently not bound to any of its allies, though all are obliged to be faithful to it.… The tranquillity of Europe, however, depends absolutely on the execution of the treaties now subsisting between the different sovereigns; and those treaties themselves depend on the stability of the constitution of those States which contracted them. The displacing, and much more the annihilation of the counterpoise of the political balance, would tend then to disturb the peace of Europe, and to revive ancient disputes and pretensions, now settled, the discussion of which again renewed would occasion the loss of much blood, and excite the tears and regrets of humanity” (Debrett, A Collection of State Papers description begins John Debrett, A Collection of State Papers, Relative to the War against France Now carrying on by Great-Britain and the several other European Powers, Containing Authentic Copies of Treaties, Conventions, Proclamations, Manifestoes, Declarations, Memorials, Remonstrances, Official Letters, Parliamentary Papers, London Gazette Accounts of the War, &c. &c. &c. Many of which have never before been published in England (London: Printed for J. Debrett, opposite Burlington House, Piccadilly, 1794–1797). description ends , I, 55). For the French decree concerning the power to declare war and conclude treaties, see “Décret concernant le droit de faire la paix et la guerre,” May 22, 1790 (Duvergier, Lois description begins J. B. Duvergier, Collection Complète des Lois, Décrets, Ordonnances, Réglemens, et Avis du Conseil-d’Etat, Publiée sur les Editions Officielles du Louvre; de L’Impremerie Nationale, Par Baudouin; et Du Bulletin des Lois (Paris, 1824–1825). description ends , I, 222–23). Debrett mistakenly dates this decree March 22, 1792 (A Collection of State Papers, I, 55).
12. This is a mistake. It should read “treaty of ’78.”
14. See Pickering’s instructions to the envoys, October 22, 1799 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 301–06).
16. See note 8.
17. See “Arrêté qui lève l’embargo général mis dans les ports de la République sur les vaisseaux neutres,” January 3, 1800 (Duvergier, Lois description begins J. B. Duvergier, Collection Complète des Lois, Décrets, Ordonnances, Réglemens, et Avis du Conseil-d’Etat, Publiée sur les Editions Officielles du Louvre; de L’Impremerie Nationale, Par Baudouin; et Du Bulletin des Lois (Paris, 1824–1825). description ends , XII, 59).
18. See Article I of the instructions to the United States envoys (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 302–03).
19. See Articles XI and XII of the Franco-American Treaty of Alliance, February 6, 1778 (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).
20. On May 8, 1800, the United States envoys wrote to the French ministers: “… the interest of the United States, while it prompts them strongly to cultivate a good understanding with France, forbids them to wish such relations to any Power as might involve them in the contests with which Europe is so often scourged. They wish not even to afford in their ports, beyond the rights of hospitality, an asylum for privateers, which obstructs their commerce, and too easily entangles them in the conflicting passions and interests of the belligerent Powers” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 320).
21. Washington’s proposal has not been found, but see H to Washington, January 25–31, 1797. See also Pickering’s instructions to Charles Cotesworth Pinckney, John Marshall, and Elbridge Gerry, July 15, 1797 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 155).