The Foreign Affairs Committee to the Commissioners
No. 7 York Town May 14th: 1778
Our Affairs have now a universally good appearance. Every thing at home and abroad seems verging towards a happy and permanent period. We are preparing for either War or Peace; for altho we are fully perswaded that our Enemies are wearied beaten and <
disappoint> in despair, yet we shall not presume too much on that belief, and the rather, as it is our fixt determination to admit no terms of Peace, but such as are fully in character with the dignity of Independant States and consistent with the Spirit and intention of our alliances on the Continent of Europe.
We believe, and with great reason too, that the honor and fortitude of America, have been rendered suspicious, by the Arts, intrigues and specious misrepresentations of our Enemies. Every proceeding and Policy of ours has been tortured to give some possible colouring to their assertions of a doubtful disposition in America as to her perseverance in maintaining her Independance; and, perhaps, the Speeches of several of the Minority in both houses of the English Parliament, (who seemed to persist in the possibility of a reconciliation), might contribute towards that Suspicion. We, at this time, feel ourselves particularly happy in being able to show, from the accidental arangement of Circumstances, such as we could neither have policy to foresee, or power to alter, that the disposition of America on that head was fixt and final. For a proof of this we desire your attention to the following.
The English Ministry appear to have been very industrious in getting their two conciliatory Bills, (even before they had been once read) over to America as soon as possible, the reason of which haste we did not then foresee, but the arrival of your dispatches since, with the Treaties have unriddled the Affair. General Howe was equally industrious in Circulating them by his emissaries thro’ the Country; Mr. Tryon at N. York did the same, and both those Gentlemen sent them under sanction of a flag to Genl. Washington, who immediately sent the first he received to Congress. Mr. Tryon’s Letter which covered them, and General Washington’s answer thereto, you will find in Hall’s and Seller’s Gazette printed at Yorktown <
April 24> May 2d.1
Those Bills are truly unworthy the attention of any National Body; but lest the Silence of Congress should be misunderstood, or furnish the Enemy with New Ground for false insinuation, they were instantly referred to a Committee of Congress, whose judicious and spirited report thereon was unanimously approved by the House April 22d and published and circulated thro’ the several States with all possible expedition.
The dispatches in charge of Mr. Dean did not arrive till the Second of May, <
ten> eight days after the said reports were published; and his expedition in bringing the dispatches to Congress, prevented any Intelligence arriving before him.2 Inclosed are the reports referred to, to which we recommend your attention in making them as public as possible in Europe, prefacing them with such an explanatory detail of Circumstances as shall have a tendency to place the Politics of America on the firm basis of National honor, Integrity and fortitude.3
We admire the true Wisdom and dignity of the Court of France, in, her part of, the Construction and Ratification of those Treaties; they have a powerful and effectual tendency to dissolve that narrowness of mind which Mankind have been too unhappily bred up in. In those treaties we see the Politician founded on the Philosopher, and harmony of Affections made the ground work of mutual Interest. France by her open Candor has won us more powerfully than any reserved treaties could possibly bind us, and at a happy Juncture of Times and Circumstances laid the seeds of an eternal friendship.
It is from an anxiety of preserving inviolate this cordial union so happily begun, that we desire your particular attention to the 11th and 12th Articles in the Treaty of Amity and Commerce.4 The unreserved Confidence of Congress in the good disposition of the Court of France will sufficiently appear by their having unanimously ratified those treaties, and then trusted any alterations or amendments to mutual negociation afterwards. We are apprehensive that the general and extensive tenor of the 12th Article may in future be misunderstood, or rendered inconvenient <
and> or impracticable, and, in the end, become detrimental to that friendship we wish ever to exist; To prevent which, you will herewith receive instructions and authority for giving up on our Part the whole of the 11th. Article proposing it as a Condition to the Court of France, that they, on their part, give up the whole of the 12th Article, those two being intended as reciprocal Ballances to each other.
It is exceedingly distressing to Congress to hear of Misconduct in any of the Commanders of Armed Vessels under the American flag. Every authentic information you can give on this head will be strictly attended to and every Means taken to punish the Offenders and make reparation to the Sufferers. The Chief consolation we find in this disagreeable business, is, that the most Experienced States have not always been able to restrain the Vices and irregularities of Individuals. Congress has published a Proclamation for the more effectually suppressing and punishing such Practices. But we are rather inclined to hope that as the line of Connection and friendship is now Clearly Marked and the minds of the Seamen relieved thereby from that unexplainable Mystery respecting their real prizes which before embarrassed them, that such irregularities will be less frequent or totally cease; to which end, the Magnificent Generosity of the Court of France to the owners of the Prizes which “for reasons of State” had been given up will happily contribute.5 We are, Gentlemen, Your Obt. Humble Servts.,
Richard Henry Lee
RC (PPAmP: Franklin Papers); docketed: “Comtee. foreign Affairs May 14. ans. July 29 1778.” See also a Tr of a copy probably sent to the Foreign Ministry because of the information it contained on the American reaction to the conciliatory bills, the ratification of the Franco-American treaties, and the regulation of the privateers (Arch. Aff. Etr., Paris, Corr. Pol., Espagne, vol. 590).
1. For a discussion of the conciliatory bills, the efforts of Gen. Howe and Gov. Try on to circulate them, and the congressional committee report on them, see James Lovell to JA, 29 April and note 2 (above). In that letter Lovell gave the text of Washington’s reply to Tryon and probably enclosed the Pennsylvania Gazette — “Hall’s and Seller’s Gazette"—of 24 April, which contained the text of the bills as circulated by Howe.
3. Probably a reference to the congressional committee’s report on the conciliatory bills mentioned above, which the Committee for Foreign Affairs wished to have published in Europe. The plural “reports” is probably used in regard to the various sections of that report, but may also refer to multiple copies of the report being sent to the Commissioners.
4. Notification to the Commissioners of the congress’ ratification of the Franco-American treaties on 4 May was delayed because of the difficulty in obtaining a secure means to transmit the treaties to Europe and the need to make copies of the documents. Although the treaties were initially approved without reservation, apprehensions about the effect of Arts. 11 and 12, both dealing with the West Indian trade, led the congress to resolve on 5 May that the two articles should be deleted (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 11:457, 459–460; Miller, ed., Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, 1931–1948; 8 vols. description ends , 2:10–11; see also Jonathan Trumbull to the Commissioners, 29 May, note 1, below).
The decision of the congress, motivated by the belief that the two articles were not reciprocal, can be traced to the divergence between the provisions of the Plan of Treaties of 1776 and the terms of the Treaty of Amity and Commerce. In the treaty plan, Arts. 12 and 13 dealt with the West Indies, the first prohibiting higher export duties on the produce of the West Indies sent to the United States than were laid on that destined for France; and the second removing any duties on molasses exported from the West Indies to the United States. The instructions to the American negotiators provided, however, that the two articles could be waived because “France was unlikely to accept the equality in colonial trade proposed in Art. 12, and there were uncertainties about Art. 13” (vol. 4:293 and note 5).
As the congress expected, France refused to accept Art. 12 of the treaty plan, but did agree to Art. 13, which was incorporated into the Treaty of Amity and Commerce as Art. 11. In return, France insisted on inserting, as Art. 12 of the treaty, the provision that Frenchmen would pay no export duties on goods sent from the United States for the use of the French islands (Miller, ed., Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, 1931–1948; 8 vols. description ends , 2:10–11). This concession was unacceptable because, according to a portion of the congressional resolve of 5 May that was deleted during the debate, “dissentions” might result from the right of France to levy export duties on West Indian produce sent to the United States although the United States could not do the same for American produce sent to the French islands (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 11:459–460). Since Art. 12 was the quid pro quo for Art. 11, it was necessary that both be removed.
A more explicit objection than was contained in this letter or the resolution of 5 May appeared in a letter from the Committee for Foreign Affairs, Instruction No. 8, of 15 May (PPAmP: Franklin Papers; Wharton, ed., Dipl. Corr. Amer. Rev. description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States, Washington, 1889; 6 vols. description ends , 2: 582–584). In that letter Lovell and R. H. Lee stated that “in addition to what is mentioned in our Letter No.  respecting the 11th and 12 Articles we observe that the 12th is capable of an interpretation and misuse, which was probably not thought of at the Time of Constructing it, which is, that it opens a door for all or a great part of The Trade of America to be carried thro the french Islands to Europe, and puts all future regulations out of our Power, either of Imposts or Prohibition, which tho’ We might never find our Interest to use, yet it is by keeping those in our Power, that will hereafter enable us to preserve equality with, and regulate the Imposts of The Countries we trade with. The General Trade of France is not under the like restriction; Every Article on our part being Staked against the Single Article of Molasses on theirs—Therefore the Congress thinks it more liberal and Consistent that both Articles should be expunged.”
Although not stated, the desire to avoid sectional conflict may have been an additional reason for the deletion of the articles. Because Art. 11 was almost identical to Art. 13 of the Plan of Treaties, it would likely have been acceptable if Art. 12 of the French Treaty had not been included, for while it favored the molasses-importing states, notably New England, it did not adversely affect the other colonies. Art. 12, however, altered the situation because it prevented those colonies exporting goods to the West Indies, mainly the middle and southern colonies which were sources of foodstuffs, from imposing export duties and thus regulating trade.
France agreed to the American proposal, and on 2 Nov. declarations, which were formally dated 1 Sept., were exchanged deleting Arts. 11 and 12 from the Treaty of Amity and Commerce. For the declarations and the effect that the deletion of the two articles had on the numbering of the remaining articles, see Miller, ed., Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, 1931–1948; 8 vols. description ends , 2:32–34. See also the Commissioners to the Committee for Foreign Affairs, 29 July (below).
5. The proclamation of 9 May, mentioned above, was intended to prevent incidents such as Gustavus Conyngham’s capture of the French brig Graciosa in 1777 and the Swedish brig Honoria Sophia in 1778 and stemmed from a report on illegal seizures by American armed vessels, that is, privateers, contained in a letter of 30 Nov. 1777 from the Commissioners that the Committee for Foreign Affairs had received on 2 May (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937; 34 vols. description ends , 11:486; Cruises of Conyngham, ed. Neeser description begins Letters and Papers Relating to the Cruises of Gustavus Conyngham, a Captain of the Continental Navy, 1777–1779, ed. Robert Wilden Neeser, New York, 1915. description ends , p. xl, xliii–xlv, prize list facing p. 152; Wharton, ed., Dipl. Corr. Amer. Rev. description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States, Washington, 1889; 6 vols. description ends , 2:433–436; see also Evans description begins Charles Evans and others, comps., American Bibliography: A Chronological Dictionary of All Books, Pamphlets and Periodical Publications Printed in the United States of America [1639–1800], Chicago and Worcester, 1903–1959; 14 vols. description ends , Nos. 16121, 16122). It required American privateers to observe the “rights of neutral powers and the usage and custom of civilized nations” and prohibited the seizure of vessels belonging to allies of the United States, unless carrying contraband or enemy soldiers, as well as those of the enemy located within the territorial waters of a neutral state and thus enjoying the protection of that nation.
The Committee clearly believed that the proclamation of 9 May and the ratification of the Franco-American treaties would produce a fundamental change in the future operations of American privateers. They would be able to operate more freely because of the clear definition of what constituted a lawful prize and the removal of the hindrance posed by French regulations, even if only pro forma, designed to prevent a premature rupture between England and France. In other words, neutral ships would no longer be taken and there would be no repetition of the incident in which the Harwich packet Prince of Orange and the brig Joseph, both taken by Gustavus Conyngham in May 1777, were returned to their British owners in response to a sharp protest by the British ambassador in Paris against the blatant use of French ports by American privateers at a time when France was ostensibly a friendly power, bound by the 1713 Treaty of Utrecht which prohibited such practices (Cruises of Conyngham description begins Letters and Papers Relating to the Cruises of Gustavus Conyngham, a Captain of the Continental Navy, 1777–1779, ed. Robert Wilden Neeser, New York, 1915. description ends , p. xxx–xxxii).
The Committee’s conclusion was further supported by the arrival, on 2 May, of a letter from the Commissioners dated 28 Feb. 1778. The Commissioners reported that the French government had agreed to pay 400,000 livres to the owners of the privateers Boston and Hancock to compensate them for the seizure and return to their English owners, “for Reasons of State,” of two British West Indiamen. While the seizure was ostensibly the result of a false declaration of origin (the prizes were said to be from St. Eustatius), it was, in reality, apparently the result of too much talk on the part of the privateer captains, Babson and Hendricks, which forced the hand of the French government (Wharton, ed., Dipl. Corr. Amer. Rev. description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States, Washington, 1889; 6 vols. description ends , 2:507–509; Deane Papers description begins Papers of Silas Deane, 1774–1790, in New-York Historical Society, Collections, Publication Fund Series, vols. 19–23, New York, 1887–1891; 5 vols. description ends , 2:110, 216). Silas Deane later stated, in his defense before Congress, that the compensation to the owners of the Boston and Hancock amounted to 450,000 livres and resulted solely from the efforts of Le Ray de Chaumont and himself (Deane Papers description begins Papers of Silas Deane, 1774–1790, in New-York Historical Society, Collections, Publication Fund Series, vols. 19–23, New York, 1887–1891; 5 vols. description ends , 3:169).