April 21st. 1797
The Secretary of the Treasury in obedience to the command of the President of the United States, respectfully reports his opinion on the following questions.
1st. Whether the refusal to receive Mr. Pinckney, and the rude orders to quit Paris and the Territory of the Republic with such circumstances of indignity, insult & hostility as we have been informed of, are bars to all further measures of Negociation? or in other words, will a fresh Mission to Paris, be too great an humiliation of the American People in their own sense and that of the World?
A consideration of this question leads to a review of various proceedings of the American and French Governments.
It has been long known to the President and has been lately demonstrated to the Public, that since the year 1778, France has never relinquished the design then formed, of maintaining an improper influence in the Councils of America. Her system for accomplishing this purpose has been governed by two leading principles—1st. To impair and weaken the energy of the Federal Government, and 2nd. to excite & promote discontents, contests or actual war with Great Britain. The opinions & writings of influential characters in France, and the measures of the Ministers, Consuls & secret Agents of the Government of that Country here, have accordingly been uniformly directed to these ends. It is unnecessary to prove these positions in any other manner than by referring to the known opposition of French Agents to the adoption of the present Constitution of the United States; to the uniform connection between French politics & Antifederealism, and to the notorious popularity in France, of the opposers of every leading measure of our Administration. This line of conduct is not to be reconciled with French ideas of Government; for while Antifederalism is here supported & encouraged the maxims & principles of the American Federalists who are the only advocates for any form of National Government in the United States, are held to be criminal when applied to France and to other Countries, where her views & Interests have led to a different policy. To prevent this inconsistency from becoming too apparent, and to lessen the influence & popularity of the friends of our National independence, every pretext has been seized to represent their measures & views as incompatible with friendship to France and the stipulations of our Treaties in her favor.
The progress of a measure so contrary to the views of France as an adjustment of disputes with Great Britain, could not be viewed by her with other emotions than of extreme solicitude. Accordingly every attempt was made to prevent overtures for negotiation;—After a Mission was determined on by the President the character of the Minister was attacked & stigmatised;—the public passions were stimulated by every possible artifice, improper suggestions were made to the American Minister at Paris, and by him countenanced and disseminated in this Country: nevertheless the negociation terminated in a Treaty with Great Britain.
From the nature of the publications which appeared before and immediately after the Treaty was divulged, it is almost certain that the French Government or at least their party here had in consequence of information irregularly obtained systematically concerted and arranged their objections; the more unexceptionable the Treaty was found to be, the more was France interested in defeating its effects.
The prejudices & discontents which had been artfully excited in the public mind, were no otherwise opposed by the Friends of Government, who were then unacquainted with the stipulations of the Treaty than by encouraging unreasonable expectations of important concessions by Great Britain, and of positive advantages to be derived from the negociation. When it was afterwards discovered that we had obtained nothing more than was our right, and on condition of performing some duties which had been neglected;—that our Commerce was to remain essentially on the old footing, and which though on the whole advantageous, was susceptible of great meliorations; and moreover when it was known that Great Britain would not relax from certain maxims of the law of Nations, which had been supposed to be unfavorable to pacific & commercial states, there was evidently a momentary declension of the public confidence, and a general sense of disappointment in the community.
It was intended that the first impression should be made upon the Senate; and it is now known that until the vote was actually taken a rejection by that body was confidently expected.
The next attack was made upon the President by means of popular addresses, which were aided by the artifice & chicanery of Mr. Randolph; a fortunate discovery of his perfidy however, accelerated a decision which would in any event have been shortly made, by the eminently impartial virtuous and enlightened mind of the Executive.
A reliance was then placed on the opposition of the House of Representatives; and it is known that this opposition was in defiance of the Constitution conducted with a concert & pertinacity, of which there are few examples.
The last resource has been an attempt to influence the election of a President of the United States, by means of the terror of War, and by measures of actual hostility against the Commerce of this Country.
On the ground of facts thus briefly detailed, it is assumed as a principle, that one of the objects of France is to regain a political influence in the United States, which has been lately in some measure impaired, and that her complaints against the Treaty with Great Britain & the measures adopted for the preservation of the neutrality of the United States, are pretexts to cover her design.
But though this is believed to be the truth, yet it is admitted to be the duty of the United States, to weigh dispassionately & to reply with temper, even to unfounded complaints of a foreign nation;—a cause founded in reason & Justice can never suffer by discussion.
It appears necessary to examine how far this has already been done.
The complaints of France respecting our constructions of the Commercial Treaty & Consular Convention, and the extent of her rights as a belligerent nation in relation to our Country, have been seasonably & fully discussed, and the constructions of the Executive, have in every instance been confirmed by both Houses of Congress, by the Judiciary Department, & by public opinion, as expressed by the Legislatures of most of the States—Decisions so made, and especially by a nation in a state of peace, and for the purpose of preserving that peace, cannot be rescinded, without national humiliation and dishonor.
With respect to the Treaty with Great Britain, which furnishes the principal subject of contention, it may be observed, that prior to the ratification by the President, a Copy was delivered to the French Minister, and that the objections stated by him, were fairly & fully refuted.
As the Measures pursued by the opposers of the Treaty in this Country justified apprehensions that discontents would be manifested by the French Government, Mr. Monroe was at an early period furnished with arguments to enable him to vindicate his Country. It is true they were not improved for this purpose, as soon as was expected, and yet if his declarations are to be credited, no specific objections were ever stated, until a short time before he entered upon the discussion in March 1796.—A reference to the correspondence prior to that time, will it is believed justify an opinion, that the French Government relied upon the efficacy of the opposition here, and were willing to preserve if possible the advantages arising from vague & indefinite expressions of discontent & resentment, rather than incur the hazard of counteracting the policy of their friends, and expose themselves to refutation by a specification of objections.
As soon as the President was informed that the French Government meditated an unfriendly course of conduct towards this Country he determined to send a new Minister to make explanations and selected Mr. Pinckney for this purpose. In the message to Congress dated January 19th. 1797, the President declared “That the immediate object of his (Mr. Pinckneys) Mission, was to make to the French Government such explanations of the principles and conduct of our own as by manifesting our good faith might remove all jealousy & discontent, and maintain that harmony & good understanding which it had been his constant solicitude to preserve”.
The character with which Mr. Pinckney was invested, was that of Minister Plenipotentiary, and his letter of credence of which a copy is in the possession of the Directory, announced that the mission originated in a disposition “Sincerely desirous to maintain that good understanding which from the commencement of their Alliance had subsisted between the two nations, and to efface unfavorable impressions, banish suspicions, and restore that cordiality, which was at once the evidence & pledge of a friendly union”. This circumstance is mentioned as it is thereby demonstrated that the special object of the Mission, must be known to the French Government.
Instead of receiving the explanations respectfully tendered by the Government <
of the Government> of the United States, the Directory has declared to Mr. Monroe, though his powers had then terminated that they will not receive nor acknowledge another Minister Plenipotentiary from the United States, until the greivances of which France has complained have been redressed. The personal treatment which Mr. Pinckney received in Paris was moreover offensive, and a violation of the law of Nations;—it is now understood that he has received orders to quit the Territories of the French Republic.
But it may be asked;—have not the Directory some plausible pretext for rejecting Mr. Pinckney—and is it necessary to infer from their conduct that rupture is unavoidable?
As this question is of great magnitude & delicacy, particular attention is due to every suggestion which has appeared.
A communication in Bache’s paper of March 30th. contains the most skilful apology of which the case is susceptible, and is believed to indicate the wishes of the party which has hitherto been in opposition to the Government.
The communication states, that the refusal to recognise Mr. Pinckney is no more than was expected and indeed no more than was prognosticated by many of our Citizens;—that the Directory having suspended their ordinary Minister here, could not receive an ordinary Minister from the United States; that on the score of national etiquette it was out of the question and on the score of aggression it was less to be expected.
It was then proposed, with reference to what was done in the case of Great Britain, that an Envoy extraordinary should be appointed to suit the “solemnity of the occasion” and to carry with him the “temper & sensibilities of the Country”—Each of the above suggestions, as well as the proposed measure deserve a particular remark.
That the refusal of Mr. Pinckney was expected and was foretold by the Writers in Bache’s paper is certain, and it adds to other proofs that a party in this Country act in conjunction with and are devoted to the views of the Government of France; but that the refusal was proper or consistent with the professed friendship of France, the acknowledged rights of nations, or was required by the honor of the French Government, cannot it is presumed be shewn.
Is the refusal grounded on the suspension of the French Minister here? This pretext cannot be admitted for Mr. Monroe was suffered to remain in Paris and was recognised as Minister, long after the suspension of Mr. Adet was announced to him by the French Government—By their own Act the Directory have therefore allowed, that the suspension of their Minister here, did not impose on them the necessity of refusing to recognise our Minister in Paris—Besides it is remarkable that when Mr. Monroe parted with the Directory, he carried with him their “regrets”.
Is the refusal to be justified on the score of National Etiquette? It will be admitted that every Nation ought to consult its glory, to preserve its rank, and defend its independence; but it is at the same time equally true, that these duties are reciprocal among nations, and are demandable of the United States as well as of France.—Upon what does etiquette depend? Is it not a creature of Society, depending altogether upon conventional rules? If so, what are the rules and ideas of European nations on the point in question? It is answered—they agree in pronouncing that a minister Plenipotentiary and an Envoy Extraordinary are precisely of the same grade.—Minute distinctions exist indeed at some Courts,—in France no distinction has ever been recognised.—It is by Ministers Plenipotentiary, that Treaties are most commonly formed, and national disputes adjusted. For the purpose of adjusting our disputes with France, Mr. Pinckney was appointed, this object was moreover indicated in his letters of credence.
The objection respecting the grade of the Minister being entirely unfounded, what circumstance required the appointment of an Envoy Extraordinary? It is to be understood that the Directory are offended that Mr. Monroe has been recalled? This presupposes France to be capable of urging the inadmissible pretension, that the American Minister in Paris, must be a Character, disposed to favor the views of France in America, and not a Character disposed to promote the views of the American Government in France.
But it may be asked, is there not some just objection of a personal nature against Mr. Pinckney, which may palliate if not excuse the conduct of the Directory? It may be boldly answered, that there is none. In point of Character, connexions, education & public services he is truly one of our most distinguished Citizens—A sincere republican, a rational friend of the ostensive & avowed principles of the French Revolution, at the same time an honest man, and supporter of the honor & independence of his Country.
The result of these reflections is, that in refusing to recognise Mr. Pinckney, the Directory have knowingly rejected with circumstances of indignity & insult, a fair & honorable proposal for the discussion and adjustment of all disputes.
The foregoing observations are made principally with the view of vindicating the Executive from the imputation of having omitted anything in respect to France which was required by propriety; it is not intended to infer that rupture is unavoidable, or even on that supposition, that further measures of negociation ought not to be immediately instituted. It is for the interest of the United States to remain at peace, and War can never be terminated without negociation. Neither honor nor policy require, that the United States should ever hesitate about making advances for promoting peace & friendship with any Nation;—all that is requisite is, that the mode of making pacific overtures be such, as not to indicate servility of disposition, or unnecessarily to concede that Errors have been committed by the Government.
But it is not to be denied that the management of negociations with France in a manner compatible with National honor is a task of great delicacy requiring all the prudence, viligance & firmness of the Government.—To judge of the difficulties, the situation views & Interests of France, and of the United States must be surveyed.
On the Continent of Europe, France is every where successful,—Spain, Italy & Holland being completely within her power, at least for the present.—The Emperor of Russia is said to have refused to comply with the engagements of his Mother, and will probably remain neutral during the remainder of the War. The King of Prussia, though really interested in repressing the views of France, appears to be more strongly impressed with a desire to reduce the Emperor of Germany than alarmed for the security of his own dominions. England is triumphant on the Ocean, but deeply wounded in her vital part, in her credit & finances.
This being the state of things, it is most probable, that hereafter the energies of France, will be principally directed against England.—To effect the humiliation of this power, France is stimulated by the powerful motives of ambition, interest & revenge. In respect to one or both of these nations, the present war can hardly fail to produce an extreme & violent issue.
The means by which England is to be attacked are already developed. The nation is to be disturbed by real & pretended invasions; every Country which France can influence is to be required to restrict British Commerce;—Neutral Commerce of every kind is to be assailed. The consequences intended (if this be practicable) to be produced, are conquest, but at any rate, insupportable expences and destruction of Credit & Resources.
It is certain that the Commerce of the United States, is of vast importance to Great Britain; its security and extension are therefore incompatible with the views of her Enemy.
The opinion of France as expected in the notes published by Mr. Adet; in the address to Mr. Monroe, and in various publications,—evidently proceeds on a belief, that their system of commercial depredation is not irreconcileable with the design of maintaining a political influence in our public Councils.—It is probably imagined that for a time the people may be induced to vindicate France, at the expence of their own government; it may also be imagined, that the loss of Revenue & public credit, will render the administration of our present system impracticable and occasion its dissolution, thereby opening a door for influence, by means of civil dissentions.—and it is not impossible that there may be an ulterior motive confined to the breasts of ambitious men in power, inclining them to discredit of our inviting example of a mild form of Government, now known to be unattainable in France.
Though the internal affairs of the United States are in some respects mending, yet there are circumstances not a little embarrassing—There is still a large party blindly devoted to French attachments; in the Southern States the Slaves are numerous, and this description of men universally consider the French as friends & deliverers;—the influence & popularity of the General Government is inconsiderable in the Western States,—if not inclined to favor France, it may at least be believed, that many of their influential men are disposed to embrace any favorable opportunity for promoting the aggrandisement of the Western Country;—if intrusive settlements upon the new lands were to be favored, it is not unlikely that emigrations would take place in such a degree as would considerably weaken the Country. It will be remembered that the efforts of Virginia, were during the last war rendered nugatory by the settlement of Kentucky; the same thing may happen again upon a larger scale.
The Revenue of the United States at present depends principally on a flourishing state of Commerce, to substitute internal Revenues equal to any considerable deficiency, and sufficient to defray extraordinary expence, will be a work of great intrinsic difficulty;—in the discussions on this subject, party prejudices & foreign influence may operate under the disguise of Patriotism.
The credit of the Country has been injured by extravagant speculations, the evils of which will be rendered more perceptible as money becomes scarce.
The effects of any serious embarrassments in British credit, are at this time incalculable;—if they should produce distrust with respect to the solidity of all public funds, our credit will decline with that of Great Britain:—the last accounts however, encourage a hope, that public opinion will establish a discrimination favorable to this Country.
The present Government of the United States having never been tried in a state of war, leaves it a matter of speculative doubt, whether the organisation & distribution of the Executive power between the general & state Governments will be found in practice favorable to that order, vigour and concert, which in military operations is indispensible.
Of these disadvantages it is probable the French have formed exagerated calculations; indeed the insolence of some of their pretensions proves, that they entertain a proud confidence in their own power & contempt for our supposed imbecillity.
But in proportion to the magnitude & reality of the evil, it behoves the Government to be prompt & decisive. If a want of tone & energy has produced the danger, vigorous & energetic measures are the proper & natural remedy.
To save the honor of the Country, it is deemed important, that no Minister should enter France without a passport previously obtained, and without the formal consent of that Government to the commencement of Negociations.
It is also essential, that no imputation should rest upon the Government in respect to Mr. Pinckneys mission, and therefore that he should be a prominent Agent in the proposed Negociation.
But as the issuing of a new Commission to Mr. Pinckney, would be a measure liable to various constructions, as it might draw in question the sincerity of the professed desire for peace; or the propriety of the former Commission; and as on the principles herein assumed, no superior diplomatic grade is known, except that of Ambassador, which is not contemplated in any Act of Congress, and for which no compensation or one very inadequate is established, it appears to be expedient, that some one or more persons should be joined with General Pinckney in a new Commission.
But to impress France with a conviction, that the Government will not be swayed by their influence to intimate in an unexceptionable manner our opinion that the first overtures ought to have been accepted, and to preserve the confidence of the true friends of American Independence, a careful selection of Characters, appears to be indispensible.
If a person known to be attached to the views of France, or so reputed in the public opinion, were to be intrusted with this mission, the following unfavorable consequences may be apprehended.
1st. . The measure would carry an appearance in the view of France, of inability in the Government to resist her influence, or at best a compromise which would encourage future enterprises.
2nd. The reverse effect would be produced at home, the friends of Government, would be in some measure cooled & discouraged, while the spirits & activity of the opposite party would be excited.
3d. If the Commission consisted of two persons of opposite political sentiments, there would be danger of dissentions, which would disgrace & injure the Government.
4th. If in a Commission of three persons, two persons were appointed, who were reputed partizans of France, there would be extreme danger that something would be done, which would strengthen an influence already dangerous to the Independence of this Country and perhaps embroil us with another Nation.
5th. If in a Commission of three persons only one reputed partizan of France was named, he if a man of real principle & honor would not accept the appointment; and considering the utter incongruity of the opinions which prevail in respect to French policy & the conduct of our Government, such an arrangement would bear too much the aspect of a political Artifice, which could not deceive France, or conciliate parties in this Country.
6th. A Commission including one reputed partizan of France, and two persons of a different description might afford an opportunity to play into the hands of France, and might furnish a medium of Cabal with their party in this Country, rather than of negociation. If France is indisposed to accomodation as is not improbable, she might be enabled to propose terms to which the Commissioners might not be authorised to accede, and thus throw the odium of failure on the Government; or if the Commission should be invested with unlimited powers, an unfavorable Treaty might be made, or a failure occasioned by the disagreement of the Commissioners on a point apparently of little importance.—In short the responsibility for a bad measure would either be divided with the friends of Government, or they would be exposed to censure for what would appear to be unreasonable pertinacity.
7th. It is an undeniable fact, that there exists in the United States a dangerous French influence; and so bold has the faction become in some places,—that an avowed partiality for France in opposition to the Measures of our Government is no injury to the popularity of a public Character.—To keep themselves in countenance, this faction asserts the existence of a British influence in the public Councils. It is constantly affirmed that Mr. Jay & other estimable Characters are of a British Party—It is now required that a French partizan be sent to France on the ground of reciprocity. It is believed that a concession on this point would produce a dangerous association of ideas in the public mind; that it would give to a calumny the force of an argument; that it would encourage irregular enterprises of ambition, and weaken those patriotic attachments which are the only security of elective Governments.
8th. The sending of three Ministers to France from this Country would be attended with an expence which would excite unpleasant reflections in the minds of many, especially if it should be thought also adviseable to send one or more Ministers, to the Northern neutral Courts of Europe.
For the reasons which have been stated, the expediency of uniting two of the Ministers now in Europe with Mr. Pinckney is respectfully suggested.—If the idea be admissible, it is believed that Mr. King & Mr. Adams are the most proper Characters.
But Candor requires, that it should be stated to the President, that there are sincere and intelligent friends of the Government, who maintain the opinion, that one person of the Commission ought to possess credit & influence with France, and the party here in opposition to the Government. Their arguments are 1st. That the measure will furnish a bridge to the pride of France to retreat; 2d.—That it will give France the motive of endeavouring to strengthen her party, by appearing to yield peace to a leader of that party;—3d. That it will convince the people completely that the Government is at least as solicitous to avoid war with France, as it was to avoid it with Great Britain—4th. That it will take from the partizans of France the Argument, that as much has not been done in her case as in that of Great Britain—5th. That in case of failure, it will contribute to the important end of uniting opinion at home.—6th. That considering the power of France and the unprepared situation of this Country, it is wise by some early condesension to avoid the danger of future humiliation.
It is observable that some of the ideas advanced in favor of the measure under consideration have been suggested as leading to a different conclusion; it will of course remain with the President to decide, whether they shall be deemed arguments or objections after considering the following summary replies.
1st. Though the pride of France ought not to be offended, yet it ought not to be flattered at the expence of the pride of the United States—2nd. Though France may be soothed & immediate rupture avoided by encouraging an expectation of increasing her influence, yet the remedy is worse than the disease. War may be compared to an acute but not mortal disorder, while foreign influence is to popular Governments sometimes a slow, but always a corrosive and fatal poison——3d. It is self evident that the Government cannot desire a war with France, as it must be a war purely defensive, without a possibility of securing advantages;—4th. Besides measures equivalent to those adopted in respect to Great Britain have been already taken in respect to France, and her conduct has been & continues to be more violent, unjust & unreasonable than was experienced from Great Britain—5th. There is no reason to doubt that the real unsophisticated opinion—of America can be united in defensive measures combined with a tender of negociation such as is proposed, while all experience has shewn it to be impracticable to conciliate faction—the truces which are obtained by compromises with faction, ever resemble in their nature, the calms which precede Earthquakes.—6th. The power of France whatever its degree may be, is at present directed by a Government ambitious, unprincipled, neither desiring nor capable of enjoying peace—Whatever is attainable by fraud or violence, it will attain; to be safe from the enterprises of this power, it is necessary that the power of the United States should be organised, and put in a state capable of the greatest degree of activity; it is in this way alone that the Government can save the Country from humiliation.
Question 2nd. If another Mission be admissible, can any part and what parts or Articles of the Treaty of Amity & Commerce with Great Britain be offered to France or ultimately conceded to that power in case of necessity if demanded by her.
Answer—The provisions of the Commercial Treaty between the United States and France are for the most part unexceptionable, or at least as favorable as can be expected to be obtainable in a Treaty to be negociated at this time;—it will therefore be sufficient for the United States to manifest a willingness to enter cordially & sincerely into the discussion of any alterations which may be proposed by France.—If in other respects the existing disputes can be adjusted, and the rights of the United States secured, it may be adviseable to renounce the principle, that free ships shall make free goods, and to leave commerce in contraband Articles on the footing of the Laws of Nations;—this may be effected by assimulating the French Treaty in these respects to the Treaty with Great Britain.
But a construction of the law of nations was attempted to be established by the British in respect to Provisions, which the United States are bound to resist as well on the ground of Interest as consistency. It was asserted by Great Britain, that Provisions & other Articles not generally contraband, and not destined to places actually invested or blockaded, may become so under special circumstances.—The law of European nations is for the most part founded in reason; though in some respects it is certainly arbitrary & conventional.—Famine is universally considered an authorised and usual means of coercion in respect to besieged places;—but in respect to great Districts & particularly to such a nation as France, the doctrine was never applied, as its use never appeared to be practicable prior to the extraordinary state of things in France in 1793 & 1794. It appears to be unreasonable to make provision in public Treaties for rare & unusual events; the design of Treaties being merely to regulate the general conduct of nations.—Extreme cases when they occur, ought to be deemed exceptions to ordinary rules; the destruction of Prisoners of war and the exterpation of Nations in supposable cases, are vindicated by the most humane writers; but to specify these cases in a Treaty of Commerce, would be a violation of public decorum, and what has never been done.
As the sensibility of France has been excited by the second clause of the 18th. Article of the Treaty with England, it will be adviseable to use special endeavours to vindicate the conduct of the American Government in this respect.—The proper defence is, that Great Britain would not relax from her construction of the Law of Nations, and that Mr. Jay would not consent to abandon ours—that therefore the point remains unadjusted—that it cannot be denied, that in some cases, provisions may reasonably be deemed contraband, when not destined to places actually invested or blockaded;—the case of an Army or Fleet destined for invasion is of this kind: when New–York was possessed by the British, although we did not command the Sea, and could not blockade the British Army yet we did not hesitate to prevent by all means in our power, neutral nations from furnishing supplies of every kind;—the existence of such cases is a vindication of the Article agreed to by Mr. Jay, and the want of a specification of them, though much to be regretted, is to be attributed solely to the pertinacity of the British Government.
It has been constantly the object of the American Government, to restrict the list of contraband of War, to as few articles as possible, and this policy ought to be pursued.—Where the Law of nations is indefinite as in the case of provisions, attempts ought to be made by specifications, to restrain the exercise of arbitrary discretion. The result of these reflections is, that it ought to be an ultimatum to concede no commercial rights secured to neutral nations, by the European Law of Nations.
Question 3d. What Articles of the Treaty of Alliance and of the Treaty of Commerce with France, should be proposed to be abolished?
Answer. If a review of the existing Treaties shall be proposed by France, it will be proper to propose an abolition of the guaranty in the eleventh Article of the Treaty of Alliance. This stipulation must hereafter perpetually operate against the United States;—France is becoming more military even than formerly, and the general state of things in Europe leads to a belief, that wars will for a long time be frequent;—a guaranty of the Liberty, Sovereignity, Independence & Territorial Possessions of the United States by France, will give us no additional security;—on the contrary our guaranty of the possessions of France in America, perpetually exposes us to the risque & expence of war, or the dishonor of violating our faith.
But in proportion as we are interested in being discharged from this engagement, France will feel the influence of an opposite Interest, accordingly we see that a “reciprocal guaranty” of possessions was proposed in Mr. Genets instructions to be “an essential clause in the new Treaty” on the ground “That it nearly concerned the peace & prosperity of the French nation that a people whose resources increase beyond all calculation, and whom nature had placed so near their rich Colonies, should become interested by their own engagements in the preservation of these Islands”.
There being but little ground to expect that France will agree to the abolition of this stipulation, it remains to be considered whether it be susceptible of beneficial modifications.
The existing engagement is of that kind which is called a general guaranty by the Writers on the Law of Nations; of course the casus federis can never occur, except in a defensive War.
The nature of this obligation is understood to be that when a war exists really & truly defensive, the engaging nation is bound to furnish an effectual and adequate defence, in co-operation with the power attacked—:It follows, that the nation may be required in some circumstances to bring forward its whole force.
The nature, degree & quantity of succour not being ascertained, engagements of this kind are dangerous, on account of their uncertainty—There is always hazard of doing too much or too little, and of course of being involved in involuntary Rupture.
Specific Succours, have the advantage of being certain, and less liable to occasion War, but they allow no latitude for the exercise of Judgment & discretion as is the case with a general guaranty.
The great extent of the British power in the West Indies, and their probable future views in that quarter; the nature of our Government which will always make it extremely difficult to engage a military force to serve out of the Country, render obligations of this kind highly inconvenient—If the general guaranty cannot be shaken off, it may be expedient to stipulate for a moderate sum of money or a quantity of provisions to be delivered in some of our Ports in future defensive Wars, but unless the new terms which may be obtainable are clearly such as to lessen the existing obligation it appears adviseable to suffer it to remain as at present.
In other respects the Treaty of Alliance will have no future operation unless it may be deemed to bear a construction, that France has thereby renounced the right of conquering in future Wars, Canada or Louisiana for herself.
France has repeatedly contended, that the imposition of Fifty Cents per Ton on French Vessels arriving in the United States is contrary to the fifth article of the Treaty of Commerce. The Arguments in support of this pretension are unknown, but it is presumed to be unfounded—The reciprocal right of laying duties equal to those imposed on the most favored Nations, and without any other restriction, sums to be settled by the third & fourth Articles. The fifth Article appears to have been intended merely to define or qualify the rights of American Vessels in France. It is however desireable that the question be understood & properly settled, but the introduction of a principle of discrimination between the duties on Vessels of different foreign nations, and in derogation of the power of Congress to raise revenue by uniform duties on any objects—whatever, ought not to be lightly hazarded.
Question 4th. Whether it will be prudent to say anything concerning the Consular Convention with that power, and if it will, what alterations in it should be proposed?
Answer. The same opinion is entertained of the policy of proceeding in this case as with respect to the Treaties. France has complained that the Convention has not been executed on our part, and the United States ought to manifest a willingness to enter into explanations and to make any reasonable alterations.—But it does not appear safe or proper on any account to do anything which may favor the claims of the French Consuls to exercise any species of Judicial authority not merely voluntary—on the contrary exertions ought to be made to expunge every clause in the existing Convention which has been contrued to support pretensions of this nature;—the Convention originated in a design to establish undue influence, and in a want of confidence in our Laws and Tribunals under the Confederation—Whatever may have been the case formerly; under the present Government, justice is rendered promptly and with strict impartiality to foreigners—As there can be no just reason existing at this time for investing Consuls with powers interfering in any degree with the authority of our Tribunals, the claim ought to be resisted as derogatory from the honor of the Country, and as a precedent fraught with incalculable evils.
Question 5th. Whether any new Articles such as are not contained in either of our Treaties with France or England shall be proposed, or can be agreed to if proposed by the French Government?
Answer. The present state of things is so unsettled both in respect to France & other Countries, that it is difficult to say what would be the final tendency of any artificial regulations with respect to Commerce. The object at which the United States ought to aim—should be, the enjoyment in the greatest attainable degree of free Commerce with every nation in the World, reserving to our Government the right of imposing uniform duties on all nations at discretion—all proposals for the naturalization of Vessels or making a common Interest with any nation relative to any branch of business, ought to be rejected. With these principles in view, it will be hardly possible for a negociator to mistake.
Question 6th. What documents shall be prepared to send to France as evidence of Insults & Injuries committed against the Commerce of the United States by French Ships of War or Privateers, or by French Commissioners, Agents, Officers or Citizens?
Answer—It is conceived that the forms which were adopted in the case of Great Britain ought to be pursued in this case; with such alterations as the different modes of proceeding in the French Courts shall be found to require: In all cases the evidence ought to be the best which the nature of the case will admit.—Proof in particular cases of each description of Insults & Injury, for which the Government means to seek redress, ought to be selected and to be well authenticated—These cases, if a specification should be required by France, may be made to serve as a basis for general measures calculated to procure reparation.—When Mr. Jay preferred complaints, he was called upon to produce proofs; a few were produced, and the result was, an agreement to appoint Commissioners, or provision by some Article in the Treaty.
Question—7th.—In what terms shall remonstrances against spoliations of property, Capture of Vessels, imprisonment of Masters & Mariners, Cruelties, Insults & Abuses, of every kind to our Citizens be made?
Answer—It does not appear to be practicable to furnish the negociator with any very precise instructions on this head, as much will depend on circumstances which cannot be foreseen. The object of the Government is to produce a successful result; accordingly that stile & manner of proceeding will be best, which shall most directly tend to this end. It is not impossible, that there may be such a change of & and measures in France, as will render it politic to speak of the treatment we have received with severity—On the other hand the French Government may be determined to frustrate the negociation, and throw the odium on this Country, in which case, anything like warmth or harshness would be made the pretext. If things remain in their present situation, the style of remonstrance ought to unite as much as possible, calm dignity with simplicity; force of sentiment with mildness of expression; and be calculated to impress an idea of inflexible perseverance, rather than of distrust or confidence.—A negociator of Talents, with general intimations of what was desired, would not fail to execute the intentions of the President.
Question 8th. In what terms shall restitution, reparation, compensation & satisfaction be demanded for such Insults & Injuries?
Answer—Some of the ideas suggested in the last reply, appear to be applicable to this branch of the subject.—In any Official note it will be sufficient to express an expectation of redress, but without specifying the mode,—this being a matter of detail proper to be embraced in some Article of a Treaty.
Question 9th. Shall demand be made of payment to our Citizens for property purchased by the French Government in Europe, or in the East & West Indies?
Question 10th. Shall demand be made of the French Government of payment for Vessels & Cargoes captured & seized, whether by ships of war, or private ships?
Answer—It is believed that payment ought to be demanded in both these cases, and that it ought to appear to be a leading object of the mission to seek for satisfaction on these points—Mr. Pinckneys mission was to make explanations to the French Government, but as the overtures through him were rejected, the making of explanations ought not to be a primary but collateral motive to new advances. Indeed so important is the demand for reparation, that no Treaty ought to be concluded, which does not satisfactorily provide for this object.—Actual payment may be postponed by consent for a reasonable time, on account of the disordered state of the French Finances.—but the obtaining a promise of payment ought to be made an ultimatum.
Prior to the Treaty of 1778, France granted pecuniary aids to the United States, amounting to three millions of Livres, and in 1781, six millions more—Military supplies were also furnished at the beginning of the War, but for these Mr. Beaumarchais has received payment.—The United States ought to shew a willingness to allow these aids by way of discount against the sums due to Citizens of the United States, who would in this case become responsible to the said Citizens. This will be a mode of reducing the amount of those claims for gratitude, which are found to be so dangerous to the Independence, and offensive to the pride of the United States. The proposal will be popular here but may require some delicacy of management with France.—If the offer be not accepted, it will silence future demands.
Question 11th.—Shall any Commission of enquiry and examination like that with England be agreed to?
Answer—This mode of adjusting disputes, or at least of applying general principles to particular cases, has been long practised in Europe, and appears to be liable to no past exceptions. It cannot be expected that France will concede to us the priviledge of determining on the acts of her Government, and of her Officers & Citizens done out of our Jurisdiction;—and it is certainly better to institute a Tribunal in which the United States will have a voice & equal influence, than to trust wholly to French Tribunals.
Question 12th.—What Articles in the British Treaty can be offered to France without compensation, and what with compensation, and what compensation shall be demanded?
Answer—It is proposed that the Treaty with France be assimulated to that with England, by renouncing the principle that free ships shall make free goods, and by leaving the definition of contraband Articles on the footing of the law of Nations, upon condition that France shall agree to make reparation for injuries done to the United States, in the manner proposed, and upon condition, that the Treaties of Alliance & Commerce, and the Consular Convention shall be limited in their duration to a period not exceeding fifteen years, except such Articles as may be declaratory of a state of peace, or as are intended to regulate the conduct of the two nations, at the commencement of or during a state of War.
The tenth Article of the Treaty with Great Britain, though much complained of, appears to be liable to no just objection, and one proper to be adopted in a Treaty with France.
As the United States are rapidly rising in power & resources, it appears to be proper to avoid entering into indefinite obligations, other than such as are founded merely in Morality & Justice, and in their own nature of perpetual obligation—The time cannot be distant, when the United States, will be able to negociate with Europe on more advantageous terms than at present.
Question 13th.—Shall a project of a new Treaty abolishing the old Treaties & Consular Convention be proposed to France?
Answer—It is not seen that any advantage would result from proposing such a project, it being the present policy of the United States, not to be forward in promoting negociations, which cannot be otherwise favorable than as they may terminate the depredations which our Commerce is suffering, and procure satisfaction for those which have been already committed. If minute & accurate instructions are prepared shewing what the United States will concede if necessary to obtain these objects, their negociator can be at no loss how to conduct.
Question 14th.—Shall such a project with a project of instructions to the Minister, be proposed & laid before the Senate for their advice & consent before they be sent to Europe?
Answer—It does not appear to be in general safe or adviseable to consult the Senate in respect to the origination of Treaties—This was indeed done at New York in respect to a Treaty proposed with the Creek Indians, and perhaps the same thing has happened in other cases; but as the general practice has been otherwise, the question may be considered unembarrassed by precedents.
1st.—The instructions must expose the views & wishes of the United States, and the concessions which they will on any account make—If exposed to the Senate they will certainly be known to France; this would leave that power master of the negociation by enabling them to bring the United States immediately to concede every point, which under any circumstances might be proposed to be yielded.
2d.—There would be danger, that the Senate might be divided in opinion, and the want of that full information which is possessed by the Executive, might occasion influential & able men to mistake the interests & policy of the Country.—Erroneous opinions thus formed would have an unfavorable effect, upon all collateral measures of the Government.
3d.—It is doubtful whether the participation of the Senate in matters relating to foreign Affairs, except in the appointment of Ministers, and in consenting to Treaties conditionally negotiated by direction of the President be consistent with the spirit of the Constitution. The reasoning on which the doubt arises is as follows. The President has by the Constitution power to make Treaties by & with the advice & consent of the Senate provided two thirds of the Senators present concur. The making of a Treaty & the consent of the Senate are distinct Acts though both are necessary to fix the obligations of a Treaty. It is proper that this important power which is exclusively vested in the President & Senate, should be exercised in such a manner as will best promote the public Interests, and preserve the check arising from a distinct & independent responsibility. It is beleived that this will be most effectually done by considering, that in the distribution of the general power between the President & Senate; the right of instituting negociations, of instructing ministers, and of making or receiving propositions, which are to form the basis of Treaties, rests exclusively with the President,—and that the right of approving or rejecting in whole or in part all propositions in Treaties negociated by the President rests exclusively with the Senate. There are evidently good reasons for this distribution—Secrecy & personal confidence are frequently essential in the formation of Treaties, and these advantages would be lost by the participation of the Senate in negociations; it is sufficient that this body is allowed an absolute negative, which they certainly have upon the inchoate Treaties negociated by direction of the Executive.
The following leading principles ought to be prescribed to govern the negociation.
1st.—That no blame or censure be directly or directly imputed to the United States—
2nd.—That no aid be stipulated in favor of France during the present War.—
3d.—That no engagement be made, inconsistent with the obligations of any prior Treaty.
All which is most respectfully / submitted by
Secy. of the Treasy.
MHi: Adams Papers.