Observations on the draught of Instructions to Oliver Ellsworth, William Richeson Davie, and William Vans Murray Esq. Ministers Plenipotentiary of the United States to the French Republic.

In considering what Instructions ought to be delivered to our ministers, all reference to the policy of the measure of renewing negociations is necessarily excluded. If we consent to treat, especially, if as in the present case, the overtures are made on our part, it is particularly incumbent to manifest sincerity of intention by demanding nothing unusual or degrading—in the event of a rupture of the negociation, it will be necessary for the government of the United States, to evince to the world, that the failure has not been owing to any want of prudence or moderation on their part.

On these grounds it is my opinion, that we must rest satisfied, if France will consent to refer our claims on account of illegal & irregular captures and condemnations in general terms, to the arbitration of a Board of Commissioners and will engage to pay or secure the sums which may be awarded.—If we insist on unconditional indemnity for any description of captures authorized by the Laws of France, it will be justly said, that such concessions are unusual or rather without precedent in public Treaties, between independent European Nations.—I am at the same time of opinion, that no restitutions or reparations to France, ought to be stipulated, except in the form of deductions from sums which may be awarded to the United States;—if this point can be attained, it will be a tacit acknowledgement of aggression, at least in degree, on the part of France, and as direct a concession as is to be expected.

On the subject of the proposed commercial regulations the following observations occur.

Folio 17 Ar. V. The French government will not agree to limit the rate of Tonnage duties & charges on American Vessells in French Ports, unless we agree to a reciprocal stipulation—such an engagement is deemed inexpedient.

Fol. 17 & 18. In the discussions relative to the Colony Trade the French Government will naturally enquire into the nature of our arrangements with St. Domingo.—To enable the Envoys to make suitable and correct explanations on this subject, they ought to be furnished with Copies of the instructions to Doct. Stevens, and with the papers exchanged with Mr. Liston & General Maitland; but under special injunctions not to communicate Copies nor permit them to be taken, nor left in France when the negociation is terminated. In my opinion if France will not allow us a Trade with her Colonies, on the terms which may be agreed in respect to the Parent State, we ought to be silent on the subject. In no event ought we to allow a price for this permission by agreeing to the payment of extra duties; nor ought we to stipulate any thing like what is contained in the last clause of the third Article of our Treaty with the United Netherlands—Such an engagement would be a species of guarranty of the Colony system. It is sufficient for the United States to engage generally to treat foreign nations with justice and friendship, we are under no obligation to come under special engagements to support systems opposed to our national Interests.

Folio 19. Ar. VI. The article restraining France from imposing Export Duties, in a certain manner, will be objected to, & ought not to be insisted on by the United States:—if in matters of Trade we are treated as well as other foreign nations we ought to be satisfied.

Folo. 20. Article VII. The 24th Section of the Collection Law, land the Act providing for the mitigation of fines penalties & forfeitures, compleatly secure effectual & prompt remedies for the case mentioned in this Article. As from the nature of things, the Governments of the two Countries must be exclusive Judges of the cases which require relief, & as a stipulation by Treaty, might occasion disputes, it is deemed expedient to omit the proposed Article.

Folio 21. Ar. VIII. Such a provision would be unusual and it will be frequently a matter of dispute whether a particular allowance ought to be considered as a drawback or bounty.—The allowance made by the United States to Vessells employed in the Cod Fishery, is partly a bounty, and partly a draw back.

Folio 23. Ar. XIV. It is believed that the 32d and 60th Sections of the Collection Law contain liberal provisions on the subject of this Article, some of which would be repealed by such a stipulation as is proposed:—the public Credit and resources of the United States principally depend on the punctual collection of the duties of Customs—the nature of the imports into the United States is such as to render illicit practises more easy by foreigners in our parts, than by Americans in foreign parts—For these and the reasons mentioned in respect to Ar. VII. it is believed, that we ought not to consent to any relaxation of the rules established by Law: the 26th Article of the late Treaty is free from objection.

Folio 25. Ar. XIX. It is believed that both Nations ought to leave the whole subject of Consuls precisely on the footing in which it is placed by the law & usages of friendly Nations. That there ought to be no encouragement held out of a future Consular Convention & particularly that the jurisdiction of our Admiralty Courts as such or by any act ought not to be impaired, as would be the case by the renewal of the stipulation in the 7th Article of the late Consular Convention.

Folio 26. Article XX. Whatever article of this nature is proposed to France, must be immediately offered to England:—we have refused to give up Deserters to England unless they would give us satisfaction on the subject of impressing Seamen.—I think the point deserves very serious consideration and that the instructions should be peremptory to agree to no article different from what will be offered to Mr. Liston.

Folio 27. Ar. XXI. In my opinion no person ought to be delivered up for offences not committed within the territorial jurisdiction of the two Countries—The Laws of the United States expressly provide for the punishment of Murder committed on the High Seas in foreign as well as American Vessells; and untill Nations shall generally admit, that the jurisdiction exclusively follows the Flag of a Vessell, it does not appear to be fit to impair the jurisdiction of the Courts of the United States;—if any thing is proposed in respect to the crime of Murder committed on the High Seas, it ought to be by way of addition to XVI Article.

Folio 28.—Article XXIII. This subject appears to my mind the most important as well as the most difficult to adjust of any which will probably arise in the proposed negociation.—It is a settled principle that Treaties are entitled to precedence according to their respective dates;—where two Treaties are in collision, the stipulations in the first are to be executed.—We have now no Treaty with France and we cannot with good faith derogate from the precedence which the Treaty with Great Britain has acquired.—By the 24 and 25th articles of the Treaty of 1794, certain privelidges are granted to British public & private Vessells of War, which are denied to other nations.—The parties have moreover agreed that while they continue in Amity neither of them, will in future make any Treaty that shall be inconsistent, with the 24th and 25th Articles.—This engagement must be deemed commensurate with the duration of the Treaty—if no substitute for the 12th article shall be negociated, the articles abovementioned will cease to operate at the expiration of two years after the present war,—if a substitute shall be agreed upon, the said articles will remain in force for twelve years computed from the day on which the ratifications were exchanged; the binding force however of these obligations may at the option of Great Britain and the United States, be further continued, by an article to be negociated, pursuant to the last Article of the existing Treaty.

The preferences formerly enjoyed by France by her Treaty which has been declared no longer obligatory and which are now secured to Great Britain are of the greatest importance to the two Nations:—France will make every exertion to regain the advantages she has lost, and any violation of the spirit of our engagement with Great Britain, will be pointedly resented by that nation.

It is my decided opinion, that we are not only precluded from granting to France equal privelidges with Great Britain, during the remainder of the present War, but also, that we are precluded during the time which the 24th & 25th Articles of the Treaty with Great Britain may remain in force, from stipulating in favour of any other Nation, privelidges which by the possibility of events, may derogate from the advantages actually secured to Great Britain at the date of the Treaty, or which may be acquired during its continuance. It is evident that the whole value of these Articles depends upon their priority; & we have promised Great Britain, that during the existance of our Treaty, we will do nothing to impair the chances in favour of her priority.

This construction of the article, which is sincerely believed to be correct, gives to the United States great advantages, which ought to be carefully improved—Whenever there is a general War in Europe, we may expect to find England & France engaged on opposite sides. In such an event, it must always be the interest of the United States to keep the scene of contention as far distant as possible.—It is desireable to preserve as equal and impartial a system with both nations as possible—but if preferences must be given in the admission of public ships of War & Privateers into our Ports, it is the Interest of the United States, that they should be granted to Great Britain rather than France—The vicinity of the British Admiralty Courts of Nova Scotia, Bermuda, the Bahama Islands, & generally the West Indies, the maxims of their Maritime Law, and the apprehension of loosing their Seamen will keep British Vessells & Privateers from frequenting our Ports; and thus the operation of the Treaty & other causes, will preserve us from unwelcome and dangerous Visitors.—

It is therefore proposed, that the ministers should be positively injoined not to renew the stipulations contained in the 17th & 22d Articles of the late Commercial Treaty with France, upon any other condition than an express declaration, that neither at the present nor any future time, shall the said articles be construed to derogate from the whole or any clause of the 24th & 25th Articles of the Treaty of Amity Commerce & Navigation between the United States & his Britannic Majesty, concluded at London on the 19th day of Nov 1794.—A general saving of the obligations contained in prior Treaties, will not for the reasons abovementioned answer the purpose;—the saving must be special, so that in respect to these Articles, a Treaty of subsequent date with Great Britain, if such a one should be negociated, during the period limited for the duration of the existing Treaty, would controul the corresponding articles in the Treaty now proposed to be negociated with France.

It is possible that France may strenuously object to any recognition of the Treaty with Great Britain; in that case, she must rest contented with such a general stipulation in favour of her public & private ships, as is contained in the 8th. article of our Treaty with Spain. If the ground now proposed is taken and preserved, it will be in the power of the United States, when the present engagement with Great Britain shall have expired, to impart equal advantages to France and Great Britain, or what would be still better, to reserve the power of concluding the Ships & Privateers of both nations at pleasure.

Folio 33. Ar. XXV—If it be possible to avoid conceeding that Provisions may become contraband, when not bound to a place actually invested or blockaded, it ought to be done, especially as Great Britain has attempted to pin a most injurious construction upon the 18th article of the Treaty of 1794.—If the article is insisted on, it ought to be formed in the precise terms of the article of our Treaty with Great Britain, and if possible an explanation added, that provisions shall be deemed contraband only, when evidently destined to supply an invading Army or hostile Fleet, though in places not actually invested or blockaded.

Folio 41. Article XXIX.—It is much doubted whether this article ought to be retained; it will only bind the United States, the government of which will never engage in unnecessary hostility with France—We may expect much injury from Cruizers in the West Indies, and it may be ruinous to wait the tardy operation of French decrees, before we use our own means to obtain security or redress. Though the principle of the proposed article is good, it is impossible not to regard the particular character of the Nation with which we treat—a stipulation of the kind proposed cannot but be dangerous in a Treaty with France—At any rate the overtures ought to come from them.

The foregoing observations are the result of the most critical attention which I have been able to give to the subject, since I recd. the draught of instructions last evening—Many of the articles usual in Treaties, not inconsistent with the principles laid down, will I presume be inserted by the Ministers, and need not be detailed—The following points ought in my opinion to be ultimata.

1st. That an article be inserted for establishing a Board with suitable powers, to hear and determine the claims of our Citizens for losses sustained by illegal and irregular Captures & seizures of Property, and binding France to [pay] or secure the sums which may be awarded.

2nd. That the Treaties and Consular Convention declared to be no longer obligatory by Act of Congress, be not in whole or in part revived by the new Treaty, but that all the engagements to which the United States are to become parties be specified in the new Treaty.

3d. That no guarranty of the whole or any part of the dominions of France be stipulated, nor any engagement made in the nature of an Alliance.

4th. That no aid or Loan be promised in any form whatever.

5th. That no engagement be made inconsistent with the obligations of any prior Treaty, & in case the engagements of the 17th & 22d Articles of the late Commercial Treaty with France, shall be reinserted, that there be a special saving of the rights acquired by Great Britain under the 24 and 25th articles of the Treaty of 1794. as herein before mentioned, or the duration of the said Articles expressly limited to two years after the expiration of the present war with England.

6th. That there be no stipulation made, by granting powers to Consuls or otherwise, under colour of which tribunals can be established, within our jurisdiction, or personal privelidges claimed by French Citizens, incompatible with the compleat soveireignty of the United States, in matters of policy, commerce and Government.

7th. That the duration of the proposed Treaty be limited to Twelve years, from the day of the exchange of the ratifications with the exceptions proposed in the draught herein referred to.

Submitted respectfully by