James Madison Papers

To James Madison from Joel Barlow, 1 January 1812

From Joel Barlow


Paris January 1st. 1812

Dear Sir,

You will perceive in my dispatch to the Secretary of State, that a treaty of commerce is to be the depot in which we are to collect and consign such principles as we can agree upon, and that I conceive myself well grounded in believing that most if not all the points I have discussed in my note of the 10th November will be accorded.1

But when I turn to my instructions it seems doubtful whether I am authorised to frame such a treaty. It is certain that I am not instructed with sufficient precision on all the objects you may wish to attain or reject.2

Believing that I am right and am pursuing your intentions so far, I shall proceed to discuss and arrange the articles of a treaty,3 as if I were specially authorised for that object. But if you wish me to conclude and sign the treaty, it may be necessary to give me a special authorisation.

The necessary instructions I have asked for in my Official dispatch addressed to the Secretary.4 With great respect & attacht.

J. Barlow

RC (DLC). In the hand of Thomas Barlow, marked “Private” by Joel Barlow, with his complimentary close and signature.

1Barlow referred to his 31 Dec. 1811 dispatch to Monroe (DNA: RG 59, DD, France), which had enclosed a 27 Dec. letter the American minister had received from the duc de Bassano. This latter document was Bassano’s reply to Barlow’s note of 10 Nov., in which the French foreign minister refuted Barlow’s contention that French regulations and tariffs had contributed in any way to the failure of Franco-American commerce to flourish in the months after November 1810 (see Barlow to JM, 19 Dec. 1811, and n. 1). “Nevertheless,” Bassano continued, “a Treaty of Commerce bottomed on the principle of a perfect reciprocity could not fail to be entirely advantageous to both Countries. The Undersigned is authorised to negotiate, conclude and sign such a Treaty. It is with a lively satisfaction that he makes known to the Minister Plenipo. of the U States the intentions of His Majesty on this important object. The U States will be entirely satisfied on the pending questions (questions actuelles) and nothing will be opposed to their obtaining the advantages they have in view if they succeed in making their Flag safe” (translation by John Graham of Bassano to Barlow, 27 Dec. 1811 [DNA: RG 59, DD, France; printed in ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 3:516–17]).

2Monroe’s 26 July 1811 instructions to Barlow discussed the subject of Franco-American commercial relations at great length and directed the American minister to realize JM’s wish that “the commerce of the United States will be placed in the ports of France, on such a footing as to afford to it a fair market, and to the industry and enterprize of their people a reasonable encouragement” (DNA: RG 59, IM). Nowhere, however, did these instructions envisage that this goal could be accomplished by a treaty of commerce.

3Barlow presented his “project of a treaty of commerce” to the duc de Bassano on 17 Jan. 1812, enclosing copies of the document and accompanying correspondence in his 28 Jan. dispatch to the State Department (DNA: RG 59, DD, France). One copy of the draft treaty, containing thirty-one articles, was sent to JM and is filed in his papers under the date of 17 Jan. 1812 (DLC).

JM gave the draft treaty a close reading, and he penciled nine sets of comments in the margins beside the proposed articles. In article 6, Barlow had endeavored to prevent the use of forged ship’s papers by stipulating that the users of such papers were to be deemed guilty of forgery and “punished for the same in the Country where the crime is detected, according to the laws thereof that may then be in force.” JM added, “but the punishment shall be the same or not greater than if the forgery had been tried within the Country to which the offender belongs.” In article 8, Barlow had provided for citizens of France and the U.S. to be free to acquire and transmit all forms of property within the dominions of the other, irrespective of whether they were naturalized or not and notwithstanding any customs or laws in force against other strangers. JM remarked, “This article violates the laws of most of the States, is of controvertible policy, and is without any substantial reciprocity, in its probable operation.”

In article 10, Barlow stipulated that in both countries no “real Estates,” debts, or moneys in banks or public funds be confiscated or sequestered in time of war and that no impediments hinder the sale of such property or the collection of rents, dividends, or interest. JM noted, “due provision for French confiscations, heretofore made, an essential preliminary to this article. Note also the word real.” Article 20 established “that free ships shall give a freedom to goods and that every thing found on board the ships of either party shall be exempt from Capture and confiscation, even though it be goods or persons belonging to an enemy, except soldiers in his service.” JM added, “It must be understood that the U. S. are not to enforce this principle agst Belligerents denying it.” In article 22, Barlow attempted to define rules for visiting and inspecting merchant ships of each nation when sailing without convoy, but he stipulated that “merchant ships sailing under convoy shall not be visited; the declaration of the officer commanding the Convoy shall be sufficient proof that no enemies Vessel is in the Convoy,” to which JM added, “with the same understanding as above with respect to free ships free goods.”

In article 26, Barlow endeavored to establish salvage rates for French and American vessels taken by a foreign belligerent then recaptured by any French or American armed vessels at the rate of one-third of the value of the vessel and its cargo if it was recaptured within twenty-four hours and two-thirds of the same value if the vessel had been in enemy possession longer than twenty-four hours. JM remarked, “The salvage is unusually high.” Article 28 provided in cases of merchant bankruptcy in the two nations for consuls to act on behalf of the bankrupts before tribunals and to receive aid and documents from such tribunals to enable them to protect their countrymen. JM noted, “The Agency of the Consul should not supersede or control that of others authorized by the absent creditors.” In concluding his draft treaty Barlow noted that in the absence of a consular convention between France and the U.S. the consuls of the two nations in the meantime should “exercise a judiciary power and police over the Crews of the Vessels of their respective nations, relative to their disputes about wages, personal quarrels &c. and the local authorities of the cities and ports where they reside, will lend them the necessary aid, in carrying their sentences into execution.” Barlow also wished to exempt consuls from “all direct taxes in the Countries where they reside.” In the first case JM objected, “The power too vague; and its specifications & limitations more proper for the separate convention.” In the second case he observed, “direct taxes too vague also.”

Monroe acknowledged receipt of the draft treaty on 23 Apr. 1812, when he sent Barlow a summary of JM’s objections “which would delay if it did not defeat here, a Treaty corresponding with it.” He reminded the minister that “a formal Treaty was not contemplated by your instructions” (DNA: RG 59, IM).

4In addition to seeking “instructions, as precise as may be on all the essential points” in his dispatch of 31 Dec. 1811, Barlow also requested direction on two issues that he anticipated might cause him embarrassment unless he were specifically instructed how to respond. The first was the possibility that French officials might propose “that the vessels of one nation shall be treated by the other precisely like its own vessels, both as to the duties of tonage and duties of merchandize.” The other was the prospect that France would reduce its tariffs to rates below those imposed by the U.S. (DNA: RG 59, DD, France).

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