Adams Papers

To John Adams from Timothy Pickering, 1 May 1797

Department of State, May 1. 1797.

To the Questions proposed by the President of the United States, on the 14th of the last month, the Secretary of State respectfully returns the following answers.

1. Question. Whether the refusal to receive Mr. Pinckney, and the rude orders to quit Paris & 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 negotiation? 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?
Answer. The Refusal of the Executive Directory of the French Republic to receive General Pinckney, and their rude treatment of him, and orders to quit the territory of the Republic, would justify the American Government in strongly expressing its resentment, in making a solemn and energetic demand of reparation for these and all other wrongs, and compensation for property purchased & unlawfully seized, and for all the damages to the property and injuries to the persons of our citizens: and a refusal to comply with these demands, would authorize reprisals. But the example of forbearance under British aggressions; the inestimable value of peace; and the general sentiment of our country decidedly point to further negociation as expedient to be attempted.—The measure may probably be marked with dignity in the manner of proposing and conducting it.—In addressing the Directory, all humiliating language may be avoided: no fraternizing words need be used: the former stile of “very dear great friends & allies” may be omitted. They know it is impossible that we should feel what those words import: and the dignity of our government demands that the spirit of Independence and the simplicity of Truth should distinguish the address. This may be—The President of the U. States of America, To the Executive Directory of the French Republic.
And as the title is universally adopted by themselves and other public functionaries, and may now indeed be considered as appropriate,—instead of Friends & Allies, they may be called Citizens.
Question 2. If another mission be admissible, can any part, and what parts or articles of the Treaty of Amity and Commerce with Great Britain be offered to France, or ultimately conceded to that power, in case of necessity, if demanded by her?
Answer. As the French Government have complained (falsely indeed) that in the British treaty we have granted to their enemies commercial advantages which we have denied to them, I think we should make no difficulty in renouncing those stipulations in the treaty with France which we did not insist on in the treaty with Great Britain. I mean the stipulations that free ships should make free goods—and that ship timber and naval stores should not be deemed contraband.—But on the other hand, as horses are free by the treaty with Great Britain, and as they are an article of some consequence in our exports, we should endeavour to strike them from the list of contraband in our treaty with France.—These alterations being made, the 14th article of the French treaty, which subjects the property of the neutral nation found on board the enemies ships, to capture and condemnation, must of course be abolished.
In the treaty of Alliance,
Art. VI. should be maintained, in order to exclude France from the islands of Bermuda, Canada and the Floridas, which, in the terms of this article, she renounced forever.
Art. XI. It is too obvious to remark, that the mutual guarantees should if possible be abolished. A renunciation on our part, of what France may claim the guarantee, would be a desirable substitute. If she will not consent to this modification, I see no other alternative. If we maintained a standing army, and a fleet of ships of the line, we might stipulate to furnish specific numbers of each, in lieu of the indefinite guarantee: but possessing neither, and not likely to possess them in a considerable period to come, we must, if insisted on by France, still acquiesce in the present guarantee: judging, whenever the demand on her part shall be made, whether the case of the alliance applies.
In the Treaty of Commerce.
Art. VIII. This stipulation of doing us good offices to secure to us peace with the powers of Barbary has never yet done us any good; and I am persuaded never will procure us the smallest benefit. Notwithstanding this stipulation, her agents may secretly do us much harm with all the Barbary powers. I should make no difficulty in renouncing this article; and especially if it can be applied as a set-off for something to be relinquished on the part of France.
Art. XI. “Goods moveable and immoveable”—does the latter word comprehend real estates? And was it intended that Our Citizens in France or its Dominions, and Frenchmen in the United States, should at their pleasure become landholders? So important a right, it should seem, ought not to be given by construction. The laws of some of the States in our union do not admit of foreigners holding real estates: and if this article was intended to operate that effect, the operation would be very unequal; as very few of our citizens will find any inducements to become land-holders in France. The contrary, in respect to the United States, was at the time when the treaty was formed, contemplated with pleasure, as it corresponded with the general policy of these states to increase their population by the admission of foreigners to settle & become landholders. The opposers of the British treaty made loud clamours against that article in it which secured to British subjects merely the estates then belonging to them, without allowing subsequent acquisitions. But this 11th article of the French treaty, if I understand it, gives that right to Frenchmen indefinitely.—I have made these remarks to bring the subject into view.
Art. XIV. In my answer to the second question, I have noted that so much of this article as authorises the confiscation of neutral goods on board enemies ships, must be abolished, if the corresponding stipulation, that free ships make free goods, is renounced.
Art. XV. The damages done by men of war & privateers of one party to the commerce of the other may probably often exceed the funds of the individual aggressors, to make compensation: Ought not the respective Governments to be responsible for such damages, in the first instance; and each exact a reimbursement (as far as practicable) from its own citizens, as well as punish their aggressions.
Art. XVII. The construction put on this article by the American Government to be insisted on; viz. That the admiralty courts of each party have a right to take cognizance of captures made within its jurisdiction, or by illegal privateers. And with regard to captures of neutral vessels at sea, and which shall afterwards be brought into the ports of the U. States, no asylum to be given to the captors or their neutral captured vessels, except when compelled to enter thro’ stress of weather, and then no longer than shall be necessary to enable them to get ready to proceed to the nearest port of the country of the captors.—Perhaps is would be eligible to fix the same rule for captured enemies’ ships (unless the contracting parties are engaged in a common cause) to exclude at once all questions and embarrassments about condemning and selling prizes.
 But if prize ships are so disabled as to be incapable of putting to sea again until refitted, or if they are utterly disabled, what should be done with their cargoes? Both cases occurred last year. The Government permitted (tho’ with hesitation, doubts & caution) the cargoes to be unladed, the vessels repaired – part of the prize goods to be sold to pay for the repairs, and the cargo of the prize vessel surveyed & reported to be unfit ever to go to sea again, was allowed to be exported in neutral bottoms, as prize goods, & consequently liable to recapture.
Art. XXII. The express exclusion of foreign privateers, enemies of either party, from being fitted in the ports of the other, or selling what they have taken, has been (absurdly to be sure) construed by the French as an implied admission of French privateers to do both. To prevent this & similar unfounded claims in future, more explicit language must be employed. The sale of the prizes of privateers, and even when made by public ships of war, may be wholly forbidden by treaty. If not forbidden, it may be left to the pleasure of each government, without either having a right to complain of the prohibition, should it take place.
Art. XXIII. This stipulates for the freedom of commerce. The modification proposed is mentioned in the answer to the 2d question.
Art. XXIV. This article also to be modified as stated in the answer to the 2d question.
 There have appeared so many disgracefully quibbling causes for capture & condemnation, that it may be impossible to guard against them in any treaty that human ingenuity can devise, to be entered into with the French Republic. To state the shameful pretences that have been already advanced by their courts & agents, & even by their first minister of justice, as causes of capture & confiscation of American vessels & cargoes, for the purpose of expressly preventing their future application, would, I think, give pain to any man of sense whom they should employ to negociate another treaty or a modification of the treaties which exist, so that he would be unwilling to admit the possibility of such abuses: yet without being so explicit there will be no safety against repetitions of licensed piracies.
1. Under pretence that certain ports were surrendered to the English by the treachery of the French or Dutch Inhabitants, Victor Hugues & Lebas, Special Agents of the Directory at Guadaloupe, have declared that all neutral vessels bound to or from such ports shall be good prize.
2. Under the false pretence that the English take all neutral vessels bound to or from French ports, the French Agents at St. Domingo decreed that all American vessels bound to or from English ports should be good prize.
3. Under the absurd pretence that the sea-letters or passports, which were intended for the mutual convenience of the two nations, to save their commerce from vexations, are an indispensably requisite document, they confiscate our vessels which are destitute of them, even when they acknowledge the property to be American.
4. Because horses and their military furniture when destined to an enemy’s port are by the 24th article of the Commercial treaty declared contraband, and as such, by themselves, liable to confiscation, Victor Hugues and Lebas decreed that all neutral vessels merely for having horses on board, should be good prize; & they accordingly condemned vessels and cargoes.
Art. XXV 5. The ancient ordonnances of the French monarchs required a variety of papers to be on board neutral vessels, the want of any one of which is made a cause for condemnation; altho’ the 25th article mentions what certificates shall accompany our vessels & cargoes, which by every reasonable construction ought to give them protection. Therefore it will be advisable to enumerate and describe the ships papers which shall be deemed necessary, and to declare that the want of any other shall not be a cause of confiscation.
6. It will likewise be expedient to fix the mode of manning our vessels, as to the officers and propositions of men who must be natives, or naturalized citizens.—An accurate examination of the French Ordonnances concerning neutral vessels will be useful to the negociator of a new treaty, or in framing instructions for him.
 The freedom of commerce, stipulated by the 23d. & 24th. articles, requires more explicit language to secure it against French chicanery, in cases like those above mentioned, than would be necessary, I hope, in a treaty with any other nation. The same remark may be applied to other articles in the treaty. It may, among other things, be expedient to define what is a town or place “blocked up or invested.”
Art. XXV. } The only consequence of the want of a sea-letter should be to excuse a privateer from damages for detention in carrying the neutral vessel into port; and by no means to supersede other proof of property. These two articles should be made conformable to each other. The 27th says that after the exhibition of the passport, the vessel shall be allowed to pass without molestation or search &c. The 25th requires that besides the passport, vessels shall be furnished with certain certificates, which of course also must be exhibited.
Art. XXVIII. The prohibited goods here mentioned, have no relation to contraband: but refer merely to such as by the laws of the country are forbidden to be exported. In the case of exporting horses from Virginia, this article was perversely applied by the French minister to horses which by the French treaty are contraband of war.
Art. XXX. The commerce of the U. States ought not to be restricted to certain “free-ports” in France; but be admitted into all her ports in the same manner as the commerce of France is admitted into the ports of the U. States.—The commerce to her Colonies will doubtless be more or less restricted, according to the usage of other European nations: yet on account of the deranged and nearly annihilated condition of French commerce, probably a larger latitude of trade with their Colonies will be readily permitted for a term of years; and perhaps the mutual advantages thence resulting will be so great as to induce afterwards a prolongation of that term, to which the course or habit of business may contribute.
Question 3. What articles of the treaty of alliance and of the treaty of commerce with France should be proposed to be abolished?
Answered under the second question: excepting that I omitted to speak of the reception to be given to the public ships of war of all nations; which indeed goes rather to the abolition of a French claim, than of any article in the treaty with France.—The French ministers have demanded that her enemies ships which had at any time and in any part of the world made prize of a French vessel, should be excluded from the ports of the U. States, altho’ they brought in no prizes with them. In opposition to this demand, we have contended that they were to be excluded only when they came in with French prizes. And the kind of asylum to be afforded in all other circumstances, is described in Mr. Jefferson’s letter to Mr. Hammond, dated the 9th of Septr. 1793, published (page 77.) with the State papers of that year, in the following words. “Thus then the public ships of war of both nations (English & French) enjoy a perfect equality in our ports, 1st, in cases of urgent necessity; 2d, in cases of comfort or convenience;—and 3d, in the time they chuse to continue.” Mr. Jefferson enlarged on this subject; saying, that there is a right secured neither to France nor Britain by treaty, “but due to both on the principles of hospitality between friendly nations,—that of coming into our ports, not under the pressure of urgent necessity, but whenever their comfort or convenience induced them.”
Question 4. Whether it will be prudent to say any thing concerning the Consular Convention with that power; and if it will, what alterations in it should be proposed?
Answer. The French, after usurping judiciary powers, by their consuls, in prize causes, with the rights of Admiralty Courts, being opposed by the American Government, laid aside the legal formalities; so that Consular sentences of condemnation could not secure to purchasers the property condemned, against capture on the high seas. But they still claim the means, by the Executive Officers of the U. States, of having the Consular decisions between French Citizens, under the 12th article of the Convention, carried into execution. This demand has recently been renewed by Mr. Létombe, their Consul General, who has produced a copy of the answer given by Merlin of Douay, the minister of Justice, to Mr. Delacroix, minister of foreign affairs, declaring that sentences of the American Consuls of France are carried into execution by the intervention of their officers of justice.—To this I have verbally answered to Mr. Létombe, that the attorney general Mr. Lee, the late Attoy. General Mr. Bradford, & the District attorney of New-York, Mr. Harrison, after deliberately examining this point, under the Consular Convention & the Act of Congress relating to it, concurred in one opinion, That the Marshals (& consequently other officers) of the U States. were not bound to execute the sentences of the French Consuls. I added, That it was plain by the 12th article, that the Consular jurisdiction between the citizens of the two nations respectively, was voluntary; and that if the parties or either of them refused submission to the sentence, each nation must provide the means of compulsion or punishment, in respect to its own citizens; and that the execution of such sentences might at any rate be suspended, by either of the parties to the suit before the Consul, by appealing to the proper tribunal of their own country. Upon this Mr. Létombe said, That France had made a provision in such case of disobedience—imposing a penalty of fourteen hundred livres on the citizen that refused to abide by the Consular decree. When Mr. Létombe shall send me a letter on the subject, I have promised an answer in writing.
 Another claim has been insisted on by the French, That the copy of a ships roll (or shipping paper) without producing the original, was an evidence sufficient to command the warrant of the District Judge to apprehend deserters from French vessels. Our district judges, according to their uniform construction of the 9th article, have required the Consuls to produce the original roll.
 These are the only two points which seem to demand an explanation. There need not perhaps be any difficulty in yielding the latter, by admitting copies of the ships roll, certified under the Consular seal, as competent evidence to the District Judge, for apprehending Deserters. But doubtless the jurisdiction of the Consul in the former case ought to remain, agreeably to our construction, wholly voluntary.
 The Consular convention will expire in about four years.
Question 5. 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 remarks made in the answer to the second question contain an answer to this, in respect to new articles to be proposed by the U. States. What France may propose, can be matter of conjecture only: yet we may certainly conclude that any new propositions on her part will be calculated to increase her advantages; and these being already too many and too great, for such a power, in respect to her disproportionate strength and overbearing disposition, we may pretty safely determine to acceed to no new articles, to be proposed by her; such excepted as are noticed under the second question.
Question VI. What documents shall be prepared to send to France, as evidence of insult and injuries committed against the commerce of the United States, by French ships of war and privateers, or by French Commissioners, Agents, Officers or Citizens?
Answer. Their own decrees:—for they too well know the promptitude of their own citizens to execute rigorously, wantonly, villainously, cruelly & vexatiously what they have arbitrarily ordained, to doubt of their injurious and destructive effects on our commerce.—But if more be requisite we may add some few sentences of their interested tribunals, and the depositions of such Captains as have witnessed their depredations and violence to the persons of our citizens. Some of these decrees, sentences and depositions we already possess; and I have taken measures to procure more, from Boston, New-York, Philadelphia and Baltimore—to which Norfolk & Charleston may be added. These I presume will be sufficient to support our demand that some plan of investigation into all our losses, and of indemnification for them, be agreed on.
Question VII. In what terms shall remonstrances against spoliations of property, capture of vessels, imprisonment of masters and mariners, cruelties, insults and abuses of every kind to our citizens be made?
Answer. The Envoy appointed to the proposed extraordinary mission to the French Republic, will frame his remonstrances on these subjects agreeably to their nature and extent; to which he will certainly be competent, and which, being on the spot, he may adapt to the characters of those to whom they shall be addressed: the only direction necessary from the government (and this is dictated by the very circumstance that under all our countless sufferings from French atrocities, we nevertheless choose to negociate, and if possible obtain a redress of our wrongs with the preservation of peace,) will be, to be firm, yet decent and respectful.
Question VIII. In what terms shall restitution, reparation, compensation and satisfaction be demanded for such insults and injuries?
Answer. The same as to the 7th question.
Question IX. Shall demand be made of payment to our citizens for property purchased by the French Government in Europe, or in the East and West Indies?
Answer. This sort of claims against the French Government has already been patronized by our own: and I think it will be indispensably necessary to continue it: partly for the very circumstance that the demands are against the French Government itself.
Question X. Shall demand be made of the French Government of payment for vessels and cargoes captured & seized, whether by ships of war or private ships?
Answer. I have no hesitation to answer in the affirmative. These captures & seizures, in general, have been made not under any known rule of the law of nations; but by virtue of the arbitrary, unjust and faithless orders of the French Government itself; which therefore is under peculiar obligations to give the indemnity.
Question XI. Shall any commission of enquiry and examination, like that with England, be agreed to?
Answer. This, I conceive, will be the only mode in which the just claims of our citizens can be ascertained. But it should have no relation, as in the British treaty, to further proceedings, by way of appeal, in any French Courts: the claims should be carried, at once, before the board of commissioners.—If the French should agree to this plan, and the claims in consequence, be adjusted, I am apprehensive that time for paying the awarded indemnities must be allowed: and that our citizens must be satisfied with becoming creditors to France, receiving interest on their credits, and the principal by instalments. They will be fortunate to obtain this. The board must sit in France—because many of the claims arise in that country because the French part of the board will probably desire to have recourse to the government itself, in settling principles; and the American Minister must be there to maintain our views of right and justice in fixing principles. Another reason is, the British precedent—the board for captures and commercial injuries sits in London.
Question XII. What articles in the British treaty can be offered to France, without compensation—and with compensation—and what compensation shall be demanded?
Answer. I do not know of any advantages in commerce that we have granted to Great Britain: if we had done so, they would, by the second article of the commercial treaty with France, have become common to her. The only article that strikes me (in the British treaty) as related to this question, is the third, regulating our commercial & friendly intercourse with the British provinces to the northward of us; in which, as it is founded wholly on locality, the junction of territories, it is impossible that France should participate.
Question XIII. Shall a project of a new treaty abolishing the old treaties and consular convention, be proposed to France?
Answer. If France would say—Let all our existing treaties with the United States be abolished—I should rejoice to meet them: but she will not do this: she possesses some advantages over other nations, by the present treaties, which by the stipulations with other powers she could not introduce into a new treaty.
Question XIV. Shall such a project, with a project of instructions to the minister be prepared and laid before the Senate for their advice and consent, before they be sent to Europe?
Answer. A project of instructions for negociating a treaty with Spain, was laid before the Senate in 1792, and approved. The peculiar situation of the United States, and especially of the Executive Branch of the Government, in relation to France would render an adoption of that precedent highly expedient, if we could trust to the fidelity of all the members of the Senate: There was no inducement, if passions or interest to betray the instructions to Spain: but any instructions alike communicated, for negociating a new treaty with France, would reach the Directory sooner than we could send them to our minister.

All which is respectfully submitted.

Timothy Pickering

MHi: Adams Papers.

Index Entries