To William Short
New York August 26th. 1790
My last Letters to you have been of the 26th. of July and 10th. instant. Yours of May 16th. No. 31. is come to Hand.
I enclose you sundry Papers by which you will perceive that the expression in the 11th. article of our treaty of amity and commerce with France, Vizt. that ‘the Subjects of the United States shall not be reputed Aubaines in France, and consequently shall be exempted from the droit d’Aubaine, or other similar duty, under what name soever,’ has been construed so rigourously to the letter, as to consider us as Aubaines in the colonies of France. Our intercourse with those colonies is so great that frequent and important losses will accrue to individuals if this construction be continued. The death of the master or supercargo of a vessel, rendered a more common event by the unhealthiness of the climate, throws all the property which was either his, or under his care, into contest. I presume that the enlightened assembly now engaged in reforming the remains of feudal abuse among them, will not leave so inhospitable an one as the droit d’Aubaine existing in France or any of it’s dominions. If this may be hoped, it will be better that you should not trouble the minister with any application for it’s abolition in the colonies as to us. This would be erecting into a special favor to us the extinction of a general abuse, which will I presume extinguish of itself. Only be so good as to see that in abolishing this odious law in France, it’s abolition in the colonies also be not omitted by mere oversight; but if, contrary to expectations, this fragment of barbarism be suffered to remain, then it will become necessary that you bring forward the enclosed case, and press a liberal and just exposition of our treaty so as to relieve our citizens from this species of risk and ruin hereafter. Supposing the matter to rest on the 11th. article only, it is inconceivable that he who with respect to his personal goods is as a native citizen in the mother country, should be deemed a foreigner in it’s colonies. Accordingly you will perceive by the opinions of Doctor Franklin and Dr. Lee two of our ministers who negotiated and signed the treaty, that they considered that rights stipulated for us in France, were meant to exist in all the dominions of France.
Considering this question under the 2d. article of the Treaty also, we are exempted from the droit d’Aubaine in all the dominions of France. For by that article ‘no particular favor is to be granted to any other nation, which shall not immediately become common to the other Party.’ Now by the 44th. article of the treaty between France and England, which was subsequent to ours it is stipulated ’que dans tout ce qui concerne—les successions des biens mobiliers—les sujets des deux hautes parties contractantes auront dans les etats respectifs les memes privileges, libertés et droits, que la nation la plus favorisée.’ This gave to the English the general abolition of the droit d’Aubaine enjoyed by the Hollanders under the 1st. article of their treaty with France of July 23. 1773. which is in these words. ’Les sujets des E.G. des P.U. des paysbas ne seront point assujettis au droit d’Aubaine dans les Etats de S.M.T.C.’ This favor then being granted to the English subsequent to our treaty, we become entitled to it of course by the article in question.—I have it not in my power at this moment to turn to the treaty between France and Russia, which was also posterior to ours. If by that the Russians are exempted from the droit d’Aubaine ’dans les Etats de S.M.T.C..’ it is a ground the more for our claiming the exemption. To these you will be pleased to add such other considerations of reason, friendship, hospitality, and reciprocity as will readily occur to yourself.
About two or three weeks ago a Mr. Campbell called on me, and introduced himself by observing that his situation was an awkard one, that he was come from Denmark with an assurance of being employed here in a public character, that he was actually in service though un-announced. He repeated conversations which had passed between Count Bernstoff and him, and asked me when a minister would be appointed to that court, or a character sent to negotiate a treaty of commerce: he had not the scrip of a pen to authenticate himself, however informally. I told him our government had not yet had time to settle a plan of foreign arrangements, that with respect to Denmark particularly, I might safely express to him those sentiments of friendship which our government entertained for that country, and assurances that the king’s subjects would always meet with favor and protection here; and in general I said to him those things which being true, might be said to any body. You can perhaps learn something of him from the Baron de Blome. If he be an unauthorized man, it would be well it should be known here, as the respect which our citizens might entertain, and the credit they might give to any person supposed to be honoured by the king’s appointment, might lead them into embarrassment.1
You know the situation of the new loan of three millions of florins going on at Amsterdam. About one half of this is destined for an immediate payment to France; but advantage may be gained by judiciously timing the payment. The french colonies will doubtless claim in their new constitution a right to receive the necessaries of life from whoever will deliver them cheapest; to wit, grain, flour, live stock, salted fish and other salted provisions. It would be well that you should confer with their deputies guardedly, and urge them to this demand if they need urging. The justice of the National Assembly will probably dispose them to grant it, and the clamours of the Bordeaux merchants may be silenced by the clamours and arms of the Colonies. It may co-operate with the influence of the colonies if favorable dispositions towards us can be excited in the moment of discussing this point; it will therefore be left to you to say when the payment shall be made, in confidence that you will so time it as to forward this great object: and when you make this payment you may encrease it’s effect, by adding assurances to the minister that measures are taken which will enable us to pay up within a very short time all arrears of principal and interest now due; and further that congress has fully authorized our government to go on and pay even the balance not yet due, which we mean to do if that money can be borrowed on reasonable terms, and that favorable arrangements of commerce between us and their colonies might dispose us to effect that payment with less regard to terms. You will of course find excuses for not paying the money which is ready and put under your orders, till you see that the moment is arrived when the emotions it may excite may give a decisive cast to the demands of the colonies.2
The newspapers as usual will accompany the present. I have the honor to be with great esteem and attachment Dear Sir Your most obedient & most humble Servt.,
Dft (Lloyd W. Smith, Madison, N.J., 1946); in TJ’s hand except for text en clair of the paragraph in code (see note 2, below), which is in the hands of Remsen and Taylor and is accompanied by a sheet containing the code symbols in Taylor’s hand, the last addressed by TJ: “Mr. Remsen” and endorsed by Remsen: “Cyphers in the Letter to Mr. Short August 26. 1790.” RC (NjP); in Remsen’s hand, signed by TJ, with interlinear decoding in Short’s hand; endorsed by Short as received 22 Oct. 1790. FC (DNA: RG 59, PCC No. 121). Enclosures: (1) Memorial signed by Stephen Gorham and fifty-two other merchants of Boston to the President and Senate setting forth their alarm “at the appearance of a disposition in some of the [French] Islands to infringe and misconstrue an important article [in the treaty of amity and commerce], which in its future operation must impede, if not totally annihilate, the amicable and advantageous commerce which ought to subsist” between them and the United States. The memorialists stated that Article xi was intended to apply to the French dominions; that “upon the faith of this rational presumption strengthened by Legislative sanction” on the part of Massachusetts, many persons in that state had “ventured their capitals in the French Islands … formed commercial establishments and … embarked in a more extensive and flourishing commerce than actually subsists between America and Old France”; and that “under the pretence that the [eleventh] Article must be literally restricted to the Kingdom of France, the most minute and trifling articles of … property [of those Americans who have died in the colonies] have been seized by the officers of Government and appropriated to the public use.” The following two paragraphs in the memorial were not included in the copy enclosed in the above letter to Short, as indicated by marginal note in FC: “That should this construction be suffered to prevail the Americans residing in the Colonies will be compelled to withdraw their persons and effects, or contract new ties of allegiance with the King of France inconsistent with their duty and affection for their native Country, to which under the present administration they have every cause to feel new and increasing attachments.—It is however with peculiar satisfaction that your Memorialists can now prefer their petition to a supreme and competent authority which possesses energy to enforce it’s remonstrances, and a disposition to extend its ample protection to it’s affectionate and dutiful constituents.” (2) Affidavit of James Perkins, Jr., 22 Apr. 1790, stating that he was merchant of Boston who for about seven years had resided chiefly at Cap François; that he had “particularly and with anxious concern noticed the conduct of the Government in that Island, in respect to the property and effects of Americans dying there; that on the deaths of “Mr. James Dennie, formerly of Boston … a Mr. George Richardson … [and] Mr. Silas Cook Brenton late of Newport,” their most minute effects had been seized and converted to public use; and that, on Perkins’ protest and calling Article xi to the attention of the judge and attorney general, they replied that the article did not apply to the islands. (3) Letter from Sartine, the Minister, 1 Jan. 1777, to the councils at Port au Prince and Cap François, stating that it was erroneous to conclude that “en vertu des traités conclus avec diverses puissances le droit d’aubaine est aboli aux Colonies comme il est en Europe.” (4) Letter from Sartine, 25 July 1779, to the council of Cap François concerning differences of opinion over the subject and declaring: “C’est un principe certain que les traités pour l’abolition dudroit d’aubaine n’ont aucune application aux Colonies.” (5) Letter from James Perkins, Jr., to Benjamin Franklin, Boston, 7 Jan. 1790, calling attention to Article xi and asking “whether this local application was the design of the contracting parties.” (6) Benjamin Franklin to Perkins, Philadelphia, 19 Jan. 1790, reading in part: “I was indeed one of the Commissioners on the part of the United States for making that treaty, but the Commissioners have no right now to explain the treaty. Its explanation is to be sought for in its own words, or in case it cannot be clearly found there, then by an application to the contracting powers.—I certainly conceived that when the Droit d’aubaine was relinquished in favor of the citizens of the United States, the relinquishing clause was meant to extend to all the dominions of his most Christian Majesty, and I am of opinion that this would not be denied if an explanation were requested of the Court of France: and it ought to be done if any difficulties arise on this subject in the French Islands, which their Courts do not determine in our favor. But before our Congress is petitioned to make such request, I imagine it may be proper to have the case tried, in some of the French Islands, and the petition made in consequence of a determination against us.” (7) Samuel A. Otis to Arthur Lee, 13 Jan. 1790, asking his opinion on the subject in behalf “of a friend in the West Indies.” (8) Arthur Lee to Samuel A. Otis, 21 Jan. 1790, reading in part: “The words of the treaty furnish no answer to his [Perkins’] question direct and decisive. I do not remember any discussion on the subject. It was taken for granted that as the object of the treaty was to encourage commercial intercourse … and the abolition of this right was one means of encouraging it, it’s being abolished in France would necessarily abolish it in her Colonies who derived it from her.—I am much inclined to believe that the Court of France will give this interpretation to that article.” FC’s of all of the foregoing are to be found in DNA: RG 59, PCC No. 121. The deletion of the two paragraphs in the first enclosure was as obviously TJ’s doing as the suggested approach to the French court on the abolition of this fragment of Barbarism and the timing of payment on the French debt was characteristic of his method in diplomacy.
1. TJ wrote “embarrasment” and one of his clerks, George Taylor, inserted a caret and added an additonals.
2. This paragraph is in code and Short’s interlinear decoding has been verified by the Editor with partially reconstructed key to Code No. 10.