To John Marshall
New York Oct 2. 1800
Before this reaches you, you will no doubt have seen under the Paris head an account of the suspension of the negotiation which has strong marks of being genuine.1 Inclosed is a comment which I have thought it expedient rather hastily to make upon it, with an eye particularly to some elections in our neighbourhood.
If you agree with me in the concluding sentiments you will seriously consider the question I have statted as to the Power of the President to proclaim temporary suspensions of hostilities. Generals of Armies have a right ex officio to make truces. Why not the Constitutional Commander in Chief!
If the President have the power another question will be whether the idea of periodical suspensions by his authority will not be better than an indefinite Legislative suspension. This might leave the matter in a situation to be managed according to circumstances relative to the future conduct of France.
These are immature thoughts only thrown out for your more deliberate consideration.
Of one thing I am sure that if France will slide into a state of Peace de facto, we must meet her on that ground. The actual posture of European Affairs & the ⟨o⟩pinions of our people demand an accommodating course.
I will make no apology for intimations dictated ⟨by⟩ my solicitude for the public well ⟨being⟩ & offered to one whom I always place among the number of my friends.
J Marshall Esq
ALS, Mr. Alexander H. Sands, Jr., Richmond, Virginia.
1. Rumors of a suspension in the negotiations in Paris between the United States envoys (Oliver Ellsworth, William R. Davie, and William Vans Murray) and the French ministers (Joseph Bonaparte, Charles-Pierre Claret Fleurieu, and Pierre Louis Rœderer) circulated in the United States in August, 1800 (Marshall to H, August 23, 1800, note 6; John Jay to H, September 22, 1800). The “account” to which H is referring appeared in The New-York Gazette and General Advertiser, September 29, 1800, as a “translation from a French paper of the 6th ult.” The “account” reads: “The conferences opened at Paris with the Envoys of the United States are at present suspended; and there is little hope of their being successfully resumed for some time. It appears that the powers vested in the Envoys are too limited to enable them to conclude a treaty which shall give the same advantages to the Republic as those granted to the English by the treaty made with Mr. Jay. France chooses rather to decline treating with the United States, than to sanction the privileges which they have accorded to her enemy.
“The question in dispute will appear from the following particulars.
“The United States and England, by the 25th article of their treaty, mutually stipulate a free entrance into their respective ports, with complete protection to the privateers and ships of war of the two countries, and the prizes taken from their enemies. And they engage never to conclude a treaty extending the same favour to any nation at war with either of the contracting parties. The treaty of 1778, between France and the United States having been annulled by the latter, and now regarded as if it never existed, they conceive that they cannot give the same privileges to France without violating their treaty with England. The French Republic does not seem disposed to ratify, to her own prejudice, and in favour of the English, her enemies and rivals, a proceeding so unexpected on the part of the Americans, with whom she recently made a common cause against those very enemies, directed to the same object for which France herself is now at war—the attainment of liberty and independence.
“It is unfortunate that the United States so precipitately annulled the treaty of 1778. They, themselves, now repent that they were induced to take that step, as it deprives them of the power of giving to France or any other country the same advantages which they have conferred on the English. Their diplomatic agents must have been very short sighted, or very partial to the interest of England—or their Envoys must give a wrong interpretation to their instructions, and the treaty alluded to; since it appears that France, renouncing the claims she may have from the priority of the treaty of 1778, now offers to treat without demanding any other advantage than those enjoyed by the English, and which they have exercised during the present war; and the ambassadors to negociate a peace, if they are not vested with power to accede to those conditions.
“The negociation was opened on the part of the French Commissioners, on the supposition that the treaty of 1778 was still in force. It was, indeed, natural to suppose that, the two nations never having been in a state of war with each other, this treaty could not have been annulled without the consent of both countries; and in this point of view it was that the French Commissioners offered an indemnification to the Americans, by admitting the principle of compensation for illegal captures.
“They even proceeded further; instead of demanding from the Americans the infinite guarantee of the French colonies, the article of the treaty which was most disadvantageous to the former, they agreed to the substitution of a special guarantee, such as appears to be contained in the instructions of the preceding ambasasdors, according to the copy of them published by Congress. But the American Envoys were not authorised to renew this treaty, even after retrenching the article respecting the guarantee of the French islands. France, therefore, conceived herself exempted from the obligation of compensating for the captures; the Americans themselves having, by abrogating the treaty, destroyed the basis on which only their claim could have been founded.
“It thus appears that negociation turned chiefly on three points.
“1. The continuance in force, or the modified renewal of the treaty of 1778. France waved this point in consequence of the assurances of the American Envoys that they could not renew it.
“2. The principle of compensation for illegal captures. This point France offered to admit; but on condition only that the treaty of 1778 should be renewed, with the modifications stated in the instructions given by Washington.
“3. The 25th article of the treaty between the United States and Great Britain, relative to the protection granted to the armed vessels of that nation. France will most probably insist upon enjoying the same advantage as long as it is possessed to her injury by her enemies.
“There is another principle which France is anxious to establish; and on the adoption of which she has strongly insisted; a principle which it is still more the interest and policy of the Americans to carry into execution. But the treaty of 1793 with the English, prevents them from acceding to this system, namely, that neutral bottoms shall constitute neutral property. France, however, hopes to reduce the powers of the North to establish this system to be excluded from the benefit of which would be highly injurious to the Americans.
“It appears, however, that these diplomatic conferrences have been conducted in the most amicable manner, and so as to leave only an impression of regret that it was impossible to remove the difficulties which had occurred. The American Ambassadors, during their residence at Paris, have been treated with every possible mark of respect, and enjoyed all the distinctions conferred on the Ministers of our Allies. As it is at present, the principle and system of France to respect and protect the Law of nations, and the rights of neutrality, it is to be hoped that the frank and equitable conduct which she holds, with regard to neutral states, will soon remove the differences which have occurred between her and the United States; and that even should the present negociation not terminate in a treaty, the American flag shall, notwithstanding, continue to be respected, and their vessels treated as those of a friendly nation in our courts of law.
“Orders are issued to the privateers to respect all neutral flags, among which the American is undoubtedly the most numerous; and American vessels are daily released by the Courts, with damages against the owners of privateers. There are now about fifty causes before the Council of Prizes respecting vessels taken in the European seas, and those of the vessels which really belong to Americans, will assuredly be restored. The fate of such, however, as were furnished with letters of marque, does not appear to be yet determined. It is thought that they cannot be given up without sanctioning the conduct of the Americans in arming them, unless the restitution should result from a new treaty of amity.”
The same account is printed in The [Boston] Independent Chronicle: and the Universal Advertiser, September 25–29, 1800; the [Philadelphia] Aurora. General Advertiser, September 30, 1800; The [New York] Spectator, October 1, 1800.