RC (DNA: PCC, No. 87, II); with an unusual number of erasures, interlineations, and awkward phrases (e.g., “good will will be to be”), and in a stiffer handwriting than usual, possibly because of fatigue induced by the preparation of a large number of papers and letters for America (see TJ to Warville, 27 May 1788, note). PrC (DLC). Enclosures: (1) Unanimous resolution of the parlement of Paris, 5 May 1788, protesting the measures taken by the ministry in arresting Jean Jacques Duval d’Epresmésnil and Goislart de Montsabert as a substitution of despotism for law, as an attempt against the liberty of two of its members whose only crime was their zeal in defense of the most sacred rights of the nation, as a violation of the right to an immediate trial before competent judges, and as placing them and other magistrates and citizens under the immediate protection of the laws and the king, to whom an appeal was directed (Tr in French in an unidentified hand, accompanied by a translation by John Pintard; DNA: PCC, No. 87, II). (2) The precise form in which TJ sent the six ordinances enregistered at a lit de justice at Versailles, 8 May 1788, is uncertain and the copies appear not to have been preserved in DNA: PCC, but he probably sent a copy of Discours du Roi, à l’ouverture du Lit de Justice, tenu à Versailles, le 8 mai 1788 (Sowerby, description begins Catalogue of the Library of Thomas Jefferson, compiled with annotations by E. Millicent Sowerby, Washington, 1952–55 description ends No. 2549). (3) “Arrêté de la Noblesse de Bretagne,” undated, declaring “infâmes ceux qui pourroient accépter quelques places soit dans l’administration nouvelle de la Justice soit dans les administrations des Etats qui ne seroient pas avoués par les Loix Constitutionelles de la province” (Tr in same hand, with translation by Pintard; same). (4) “Discours de M. Maurel de Calessane 1er Avocat general au Parlement d’Aix apr ès la lecture de l’edit portant creation de la cour pleni ère,” formally opposing the registry of the new measure, declaring it to be destructive of the constitution, asserting it would be better to die than to accept such an “atteinte aux droits de notre patrie,” and publishing their resistance to it in behalf of the king, to whom they give assurances of fidelity (Tr in hand of Short, with translation by Pintard; same; PrC of Tr in DLC). (5) “Arrêté du Chatelet” of Paris, undated, noting “avec la plus vive douleur les coups d’autorité multipliés contre les differentes cours du Royaume,” the magistrates arrested, and the sanctuary of justice violated by armed guards; and, considering that the promulgation of ordinances, edicts, and declarations have been made without having undergone deliberation by the parlement, unanimously declaring that “elle ne peut ni ne doit faire proceder à la lecture, publication et enregistrement” of these ordinances, &c. (Tr in Short’s hand; DNA: PCC, No. 87, II). (6) Though not specifically mentioning it as an enclosure, TJ evidently included as another paper indicating symptoms of resistance an “Arrêté du Parlement de Dauphiné du 9 Mai,” defending the constitutional rights of the country, denouncing the secret and simultaneous measures taken by the ministry as fatal to the nation, and declaring that the rights of the subject are not less sacred than those of the sovereign; that the monarchy cannot be preserved except on the basis of immutable laws securing to the citizens the liberty of their persons and property; that the nation has always guarded against the fatal effects of arbitrary power; that the right of consenting to imposts is as ancient as the monarchy, and can only be exercised in the States General; that long and unhappy experience has shown only too fully the facility of administration at committing the king’s sacred word and then failing in the solemn engagements taken in his name; and that no officers of the parlement could, without betraying their oaths, take any place in administration without being regarded as traitors to the country (Tr in Short’s hand, with translation by Pintard; DNA: PCC, No. 87, II; PrC of Tr in DLC). (7) Though likewise not specifically identified as an enclosure, a lengthy address presented 4 May 1788 by the parlement of Paris to the king was evidently included by TJ. It protested the king’s answer of 17 Apr. 1788 as afflicting them greatly but leaving them with courage unabated; defended the prerogatives of the parlements as grounded in fundamental law which could not be contravened by royal or ministerial tendencies toward despotism; and concluded: “Pour votre Parlt. ces principes ou plutôt, Sire, ceux de l’ état qui lui sont confiés, sont immuables. Il n’est pas en son pouvoir de changer de conduite. Quelquefois les magistrats sont appelés à s’immoler aux loix, mais telle est leur honorable et perilleuse condition qu’ils doivent cesser d’etre avant que la nation cesse d’etre libre” (Tr in Short’s hand, with translation by Pintard; DNA: PCC, No. 87, II; PrC of Tr in DLC). (8) Communications from the emperor of Morocco to Giuseppe and Francisco Chiappe; see Chiappe to TJ, 6 Mch. 1788. (9) The memoire of Francis Cazeau, a former merchant of Montreal, which had been transmitted in Carra to TJ, 29 Apr. 1788, and which Cazeau had threatened to publish as an indictment of the good faith of the United States (see Short to Jay, 18 Mch. 1788), has not been found in DNA: PCC. But, sometime during 1788, Cazeau did present his complaint to the king. His memoire, undated, was submitted to Montmorin and is in Arch. Aff. Etr., Paris, Corr. Pol., E.-U., Vol. XXXIII; transcripts in DLC. Its substance is similar to that which appeared on the journals of Congress in Mch. 1784 when TJ was present. In that memorial Cazeau stated that, in response to an appeal from the commander-in-chief of the American armies in 1775, he had supplied cloth and other articles to Arnold’s expeditionary force and had purchased about 12,000 bushels of wheat for these troops, selling a part to the British contractor to allay suspicion; that he had been paid in paper money for the former, and, on the expectation of Arnold’s return to Canada, he had retained the “flour middlings and bran” which had “spoiled for want of hands to take care of them”; that he had sent three batteaus with wines, spirits, and other articles which were plundered and destroyed; and that in consequence of his friendly acts in behalf of the United States, he had been imprisoned for over two years in Quebec, his property had been sequestered, and his family turned out of doors (JCC description begins Journals of the Continental Congress, 1774–1789, ed. W. C. Ford and others, Washington, 1904–1937, 34 vols. description ends , XXVI, 147–9). (10) Again, though not specifically mentioned, TJ enclosed a printed copy of the arrêt of 22 Feb. 1788, printed herewith. Most of the foregoing were not actual enclosures, but were carried separately by Brissot.

It is possible that the opposition of the chambers of commerce to the arrêt of 29 Dec. 1787 that TJ had reported to Jay on 5 Feb. 1788 was less responsible for the new arrêt of 22 Feb. 1788 than the fact that Luzerne did not “manifest any partialities” toward America. Luzerne had not sent out the former arrêt until 26 Jan. and there was scarcely time for much opposition to develop before TJ knew that the terms of that arrêt were under attack within the ministry and that exceptions would be made to them. On 11 Feb. the controller-general, Lambert, invited TJ and Rayneval—and very probably others as well—to an evening conference at his home to discuss the observations that had been made on the arrêt (the invitation to Rayneval, on the same date and in the same terms as that to TJ, is in Arch. Aff. Etr., Paris, Corr. Pol., Vol. XXXIII; transcripts in DLC). Two days later TJ received a draft of the new arrêt from Dupont, but he was still in the dark as to the “real motives which produced this opposition” (TJ to Dupont, 15 Feb. 1788). On Saturday, the 16th, there was another conference held at Lambert’s home. It included the following persons, all of whom very probably were at the conference on the 13th: TJ and Lafayette; the two commissaires g én éraux for commerce (Dupont and Boyetet) and their deputies from Marseilles, Normandy, and Brittany; Poujet and Chardon, who were in Luzerne’s department and were especially concerned with fisheries; and La Porte and La Boullaye, councillors of state. Rayneval had been invited, but was not present. On Sunday, the 17th, Lambert reported to Montmorin the result of their deliberations, thus exhibiting the concern of the ministry by the extraordinary speed with which the new arrêt was pressed through to a quick conclusion. Although the terms of the new arrêt had been agreed upon and a draft of it made soon after the first meeting on the 13th, Lambert assured Montmorin that, on the 16th, they had examined all of the observations that had been made on the arrêt of 29 Dec. He further reported it as the unanimous conclusion of the conference that that arrêt would need no further modifications than those indicated on a projet that he then enclosed, on which he asked Montmorin to let him have his observations as soon as possible. “Je me suis attaché,” he declared, “dans la rédaction à conserver l’unité des vües avec l’Arrêt précédent, afin que les Etats unis comprennent que cette explication n’apportera aucun retranchement réel à ce qu’ils avoient droit ou intérêt de prétendre ou d’espérer de la bienveillance du Roi, manifestée par l’arrêt dernierement expédié” (Lambert to Montmorin, 17 Feb. 1788; same). Montmorin was not so speedy in his reply as Lambert had been in preparing the arrêt; three weeks later he answered: “Il m’a paru que ce nouveau projet, en sauvant l’inconvénient de l’entrepot qu’il prescrit, étoit satisfaisant pour les américains” (Montmorin to Lambert, 10 Mch. 1788; same). Three days later Luzerne sent copies of the arrêt to the chamber of commerce at Marseilles, saying that the previous arrêt “ayant causé des inquietudes au Commerce, sur la facilité qui pourroit en résulter pour l’introduction de la Morue américaine en france, Sa Majesté a cru devoir interprêter cette disposition par un Second arrêt … qui excepte de ces entrepôts les poissons huiles et autres objets de pêche americaine” (Chamber of Commerce of Marseilles, Archives, ser. H., art. 82, “Commerce avec les Etats-Unis d’Amérique. Objets généraux. 1778–1793” microfilm in TJ Editorial Files). Thus, though the arrêt is dated as approved in Council on 22 Feb., it was not actually issued until Montmorin gave his belated approval. By then TJ was in Holland and Short reported to Jay that the previous arrêt had been violently attacked and suffered “a slight alteration” he believed no other would be attempted (Short to Jay, 18 Mch. 1788). It is evident from this that Short had not seen the arrêt, but it is equally evident from the context of his letter that he was aware. the change was due to the “extreme jealousy of the ministry with respect to our fisheries … kept alive and augmented by some Americans settled at Dunkirk, who flatter them with the idea of employing seven thousand French fisherman in that business … provided other nations are properly discouraged.” The primary object of the Nantucketers at Dunkirk was the whale fishery. Thus, whether Jay noticed it or not, Short revealed by indirection what was known to be in the arrêt long before TJ left for Amsterdam: the projet of an arrêt that Lambert said was unanimously approved by the conference at which TJ and Lafayette were present contained the repeated phrases referring to the exclusion of fish oil … from the Entrepot: it differs in no material respect from the arrêt as finally adopted (see notes to the arrêt, printed herewith). It is possibly true that TJ did not get a printed copy of the arrêt until yesterday, but it is certain that he could have got the official text several days before going to Holland, and may indeed have done so. The reasons for his not exhibiting the same concern for obtaining a copy that he had shown with respect to the arrêt of 29 Dec. 1787, when he went so far as to send a corrected proof copy to America, is clearly the one that he gave Jay early in February—that he thought “it better not to alarm our merchants with any doubts about the continuance” of the earlier arrêt. The new arrêt contained in its final passages an implied threat that the ministry might yield even further to the chambers of commerce, and TJ had observed to Jay in his letter of 5 Feb. 1788 that this “instability in the laws in this country is such that no merchant can venture to make any speculation on the faith of a law.” His delay in sending the new arrêt was obviously calculated.

But on his lack of close attention to this relatively minor arrêt depended a more important matter. The exclusion of fish oil … from the Entrepot, as TJ soon discovered if he did not know already, was very far from being a meer error in the clerk who formed the arret. It is very likely true, too, that the entrepot of whale oil was not objected to by a single deputy at the conferences. There would have been no need to make such objection if, on the reading of the draft at the final meeting on the 16th, the crucial phrases of the arrêt escaped attention on it’s passage, or received no comment, on the part of the person most concerned in protecting American interests—that is, the American minister himself. Poujet and Chardon, experienced bureaucrats, must have received TJ’s silence with some satisfaction and reported it to Luzerne with even more. In February, TJ and Lafayette were clearly faced with a pressure that could not be withstood; in May, though TJ could easily have sent a copy of the arrêt in his dispatch of the 4th, he did not do so. Later in the month, the Quaker Nantucketers of Dunkirk engaged in the whaling trade were making another strong bid for support from the government and TJ was faced with the need of trying to recover ground lost by inattention on his part or by trickery within the ministry, and at the same time he was forced to prepare for the new attack; the underselling of both American and French oil by English merchants brought forth two memorials from Francis Rotch late in May (for a note on Rotch and the “Nantuckois” at Dunkirk, see under 19 Nov. 1788). The need to keep from alarming American merchants about the fate of the arrêt of 29 Dec. 1787 was mounting, and TJ was careful to point out that the attack on the privileges on the sale of our ships enabled him to effect a compromise whereby the American minister tactfully saved the valuable article relative to our ships by abandoning the useless one for our codfish. This may have persuaded Jay, as it has historians, that there were concessions on both sides, but the evidence points to a single attack on American fisheries, not on the shipbuilding industry which under Article V of the arrêt was privileged to sell American-built ships in France duty-free. A copy of the arrêt of 29 Dec. 1787 in Montmorin’s files bears in its margin two comments which may have resulted from Lambert’s meeting of 13 Feb. 1788 and certainly resulted from the commercial protests against the arrêt. Only two of the articles of the arrêt are involved in these marginal notes, Articles II and X. Opposite the former is the following: “Cet article est sans inconvenient, parceque toutes les Nations étrangeres sont également assujetties au paiement des grands droits ou droits prohibitifs de l’arret du Conseil du mois de Juin 1763, dont la conservation a été votée dans l’Assemblée des Notables, à l’occasion du tarif uniforme.” Opposite the latter is this: “Il n’en est pas de même de cet article. S’il laisse, comme il le paroit, la liberté d’entrepôser dans tous les Ports qui font le Commerce des Colonies, la morue verte ou Seche provenant de la pêche des Americains. Il en résulteroit des facilités que nous accorderions nous mêmes à notre préjudice, pour la Reéxportation de ces Morues à l’étranger et Surtout en Espagne, en Italie et en Portugal, païs pour lequel la Finance accorde des primes au Commerce National. Celui-ci Seroit plus découragé par la présence et la concurrence de ces morues étrangéres, qu’il ne Sera jamais excité par la faveur de la prime.—2.° Quelque précaution que l’on prenne, les déclarations Seront infidelles tant à la rentrée, qu’à la Sortie de l’Entrepôt. Il S’ecoulera toujours une quantité considérable de ce poisson étranger dans les provinces du Royaume; Et comme les Américains peuvent donner à moitié prix, la consommation du poisson de pêche National diminuera d’autant, les armemens tomberont, l’Ecole des Matelots S’anéantira; on Sent vivement ces préjudices par le contre coup de la franchise de Bayonne qui autorise de pareils entrepots et favorise tellement la fraude, que la Morue étrangère pénetre de là jusques dans le Languedoc. Il y a deux ans que les places de Commerce ne cessent de demander que cette franchise soit supprimée, pour ce qui concerne le poisson sec et salé; combien ces cris vont ils se renforcer, lorsqu’elle S’étendra à tous les ports, pour ainsi dire, du Royaume?—Il parait très important de prévenir le mal par une explication, qui excepte le poisson sec et salé de la Disposition de l’article 10. Il y va de la ruine ou de la conservation de la pêche francoise (Arch. Aff. Etr., Paris, Corr. Pol., E.-U., Vol. xxxii; transcripts in DLC). This was probably Rayneval’s notation, showing the essential change that was desired. There was nothing in the marginal commentary opposite Article V. It is also to be noted that there was nothing in the comments concerning whale oil, or other products of the fisheries aside from cod. TJ, therefore, in laying emphasis upon a compromise whereby he yielded an unimportant article in order to save a valuable one, may only have employed a familiar diplomatic device by way of redeeming his promise to Dupont to “so represent the matter in my letters as that nothing shall be thought of it” (TJ to Dupont, 15 Feb. 1788). In achieving this legitimate purpose, he was able at the same time to cover his earlier failure to notice and to oppose the passages in the new arrêt concerning whale oil. He was now on guard, however, against Luzerne’s unfriendliness, and when the same hostile forces in the Council aimed a more severe blow at the American whale fishery in the arrêt of 28 Sep. 1788 by the last-minute deletion of the critical word “European,” without warning to TJ, he was quickly informed of the manoeuvre, suspected that it was the work of Luzerne, and acted promptly to overcome its effect.

Herein lay, presumably, one explanation for the opinion held of TJ by the minister of marine. Early in 1789 TJ presented Gouverneur Morris to Montmorin, Luzerne, and other ministers. Luzerne received Morris “with a degree of Hauteur I never before experienced.” It was not until a year later, however, that Morris was given reason to believe that it was TJ rather than himself that had produced the chilly reception. “He speaks of Jefferson with much Contempt as a Statesman,” Morris recorded in his diary on 6 Apr. 1790, “and as one who is better formed for the interior of Virginia than to influence the Operations of a great People.” Morris said that he was “rather surprized at this Sentiment because Mr. Jefferson has in general excited favorable Ideas of his intellectual Faculties” (A Diary of the French Revolution by Gouverneur Morris, ed. Beatrix C. Davenport, Boston, 1939, i, 5, 476). Luzerne’s contempt, evidently an attitude that was almost if not quite unique among French officials who had dealings with TJ, may have been due to the fact that he had felt the force of TJ’s intellectual faculties as expressed in Observations on the Whale-Fishery and the arrêt of 7 Dec. 1788 which decisively defeated the hostile moves that the minister of marine had made against American whale oil. (See TJ to Montmorin, 23 Oct. 1788; TJ to Jay, 19 Nov. 1788, 11 Jan. 1789; TJ to Adams, 5 Dec. 1788.)