Benjamin Franklin Papers
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The American Commissioners: Memorandum for the French and Spanish Courts, 23 November 1777

The American Commissioners: Memorandum for the French and Spanish Courts

DS: Archives du Ministère des affaires étrangères, Archivo General de Simancas; DS (draft2): Princeton University Library; copy: Archivo Historico Nacional

This memorandum had been in preparation for more than a fortnight. On the 8th Franklin had made the original draft, now lost, and Lee had suggested changes that his colleagues accepted; on the 9th the document was ready to be copied and signed.3 For some reason, however, it was held up. Ferdinand Grand, Lee learned, had also made suggestions, and was surprised not to have had the draft returned to him to show to the Spanish Ambassador. On the 20th Lee heard from Franklin that the memorandum had already been sent off, and was furious at not having been consulted. The document had in fact gone not to Madrid but to Vergennes for his approval. On the 21st the commissioners learned that a privateer had taken an English ship in French territorial waters, and that the French court was as incensed as the Spanish.4 Lee thereupon proposed that the same memorandum be sent to Versailles, and his colleagues agreed. They all signed it on that day, but it was not yet in final form. Vergennes objected to one passage, which asked that neutral powers exercise admiralty jurisdiction over prizes taken near their coasts. Although the commissioners had been instructed to make the request, they doubtless knew it would not be granted. They deleted it without demur, and on the 23rd signed and delivered the memorandum.5

Paris, Novr. 23. 1777.

The Commissioners from the United States of America are extreamly concerned to understand that the Courts of Spain and France are offended with said States, on Account of the taking of the French Ship Fortune by an American Privateer, which Ship was bound from England to Cadiz, and is represented to have had Spanish Property on board. The Commissioners are confident that nothing can be more distant from the Intention of the said States than that their Subjects should profit by making such Prizes (as they have no War with those Nations but consider them as real Friends,) and have moreover the greatest personal Respect for their most Christian and Catholic Majesties, with the strongest Desire of meriting and cultivating their Friendship. The purpose of the Congress in commissioning armed Vessels, as well as the Measures taken in their several States by establishing Courts of Admiralty to prevent or remedy irregular Captures (in which Courts all Prizes brought there are to suffer a regular Trial) appears on the Face of the Commissions granted, an authentic Copy whereof is hereunto annexed, By which Commission also it will appear that the Congress have not authorized any Act that may be contrary to the Law of Nations.6 The Commissioners tho’ they have no Concern or Correspondence with the Captain who took the Prize in question, are of Opinion, that knowing it to be a common Practice with English Merchants to cover their Property in Ships bound to Spain under the Names of Spanish Subjects, he might conceive the Goods consigned to Cadiz from London in the Fortune were of that kind; and that it was therefore right to have a Trial on them by sending the Ship to Boston, where it is not doubted but that the Ship will be discharged and her Freight and Damages paid, as belonging to France, and the Goods reclaimed, or their Value on the Proofs appearing that they belong to Subjects of Spain, be delivered to the Claimers. By this means only the Irregularities and Inconveniences of such Captures, (which in no War can possibly be entirely prevented) will be rectified and remedied. And in this Confidence the Commissioners hope the Displeasure conceived against their Country on the present Occasion will subside, and that the United States will obtain and preserve the Favour of their Catholick and most Christian Majesties which of all things is most earnestly desired. They also submit it to consideration whether the Appointment of an Agent or Consul to reside in America and take care of the Interests of the Merchants of these Nations, by making Reclamations when necessary, and supporting such Claims in the Courts of Justice, would not be useful, not only in obtaining more speedy Justice but in preserving that good Intelligence between the People of the different Countries which may be advantageous to all: To prevent Misunderstandings for the Future, we purpose to write immediately to the Congress acquainting them with this Transaction, and urging them to give strict Orders to all who act under their Commissions to Respect the Flags of every neutral or friendly Power, under severe Penalties for Disobedience.

And in the meantime we shall recommend it to our Correspondents at the several Ports, to warn the Captains of American farmed Vessels to conduct themselves as if such Orders were already given.

B. Franklin
Silas Deane
Arthur Lee

Notation: 23 9bre 1777

[Note numbering follows the Franklin Papers source.]

2Dated the 21st and containing the passage that was subsequently deleted; see our note below.

3See the headnote on Lee’s letter above, Nov. 8.

4This capture is discussed in McCreery to the commissioners above, under Nov. 14.

5Our account is based on Lee, Life of Arthur Lee, I, 352–3, supplemented by Stevens, Facsimiles, XIX, no. 1747.

6The enclosed copy, a printed form with the relevant wording underlined in ink, is reproduced in ibid., no. 1746. In the draft there follows at this point the deleted passage discussed in the headnote: “And it is to be wished that when Ships are taken by such armed Vessels in Seas remote from America but near to the Ports or Dominions of neutral Powers, those Powers would permit the Entrance and Trial of such Prizes by their own Courts of Admiralty, to the Decision of which Courts the Congress is willing and desirous they should be submitted, as will appear by the same Commission. In that Case the Necessity the Captors seem to be under of sending their Prizes to America for Trial, whenever sufficient Suspicion arises that the Property of their Enemies may be cloaked under the Names of Friends would be avoided; and the Ships or Goods reclamed by the Subjects of France or Spain, would be tried in their own Courts, and Justice more speedily rendered than it can well be from a Country so distant as America; where nevertheless it will certainly be obtained, (tho’ with greater Trouble and Loss of Time by reason of that distance) on due Proof being made that the Property reclaimed belongs truely to the said Reclaimants and not to the Subjects of Great Britain.”

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