The undersigned have the honor to present to you a journal of their proceedings,6 and a Convention in which those proceedings have terminated.
The claim of indemnity brought forward by them, was early in the negociation connected by the French Ministers, with that of a restoration of treaties, for the infraction of which the indemnities were principally claimed. To obviate this embarrassment, which it had not been difficult to foresee, the American Ministers urged, in the spirit of their instructions, that those treaties7 having been violated by one party and renounced by the other, a priority had attached in favor of the treaty with Great Britain,8 who had thereby acquired an exclusive right for the introduction of prizes; wherefore that right could not be restored to France. The argument was pressed, both by notes and in conferences, as long as there remained a hope of it’s utility, and until there appeared no alternative but to abandon indemnities, or, as a mean of saving them, to renew, at least partially, the Treaty of commerce. Whether, in fact, it could or could not be renewed consistently with good faith, then became a question for thorough investigation, in the course of which the following considerations occurred.
1st. It is not a breach of faith to form a Treaty with one nation inconsistent with an existing treaty with another, it being well understood, that the prior treaty prevails, and has the same operation, as if the subsequent one were not formed; nor is it necessary or usual for a subsequent, to make an express saving of the rights of a prior treaty, the law of nations having made that saving as complete and effectual as it can be rendered. This rule of construction holds universally, except where the subsequent treaty can have no operation but by violating the first; in which case, it will be taken for an agreement to come to a rupture with the power, with whom the first was formed.
2nd. Indeed by a clause in the 25th. article of the British Treaty, it is provided “that while the parties continue in amity, neither of them will in future make any treaty that shall be inconsistent with that, or the preceding article”9—which articles contain among other things, the exclusive right of introducing prizes into the ports of each other. If, however, the British be considered in the light of a prior treaty, as it must be to raise a doubt, all it’s rights, as well those of a restrictive nature as others, would be saved of course, and none of them would at any time, or in any degree, be affected by the subsequent stipulation. The subsequent stipulation, in the case supposed, altho’ it should give in general terms the rights of introducing prizes, would be understood with a limitation—that it was never to extend to a case in which Great Britain should be the enemy.
3rd. The instructions to the American Ministers authorised a renewal of the 17th. article of the treaty of Commerce,10 if it should be necessary tho’ with a special saving for two articles of the British Treaty. That special saving, however, cannot be material, as the settled rule of construction would, without it, making a saving still more comprehensive.
4th. The renewal of the 17th. article of the commercial treaty, is not conceived to be within the expression or design of the restraining clause of the British Treaty, “not in future to make any treaty that shall be inconsistent with &c.” To recognize a pre-existing treaty which contains a stipulation inconsistent with &c, is not to make a new, or future treaty containing such stipulation. To recognize the former treaties, would be only to preserve, or restore the state of things existing when the British Treaty was formed; and not to introduce a new state of things, which was, doubtless, the event intended to be guarded against. It would be only to do what is usually done in the termination of misunderstandings. We are not to presume, and much less is it expressed, that the United States and Great Britain meant to deprive themselves of the usual means of terminating national contests in which they might be involved. And the facility of terminating misunderstandings by restoring things to their former condition, is not only so great, but so conformable to justice, and so favorable to general tranquility, that the law of nations will not favour a construction which goes to deprive a contracting party of the benefit of it.
5th. The language in which pre-existing treaties are usually recognized at the close of a war, does not import that the treaties have in fact ceased to exist, but rather that the causes which suspended their operation, have ceased. And, in various instances, such treaties are counted upon as becoming again operative, without any express provision to render them so.
6th. Nor is it conceived, that the treaties between the United States and France have undergone a more nullifying operation, than the condition of war necessarily imposes. Doubtless the congressional act, authorising the reduction of French cruisers by force,11 was an authorization of war, limited indeed in its extent, but not in it’s nature. Clearly also, their subsequent act, declaring that the treaties had ceased to be obligatory, however proper it might be for the removal of doubts, was but declaratory of the actual state of things.12 And certainly it was only from an exercise of the constitutional prerogative of declaring war, that either of them derived validity. So that the treaties in question, having had only the usual inoperation, might without a breach of faith, have the usual recognition.
7th. As far as the opinion of Great Britain goes, there would be no difficulty in recognizing a treaty which gives to France an exclusive right to introduce prizes into the ports of the United-States; because she, by a project of a treaty of peace, drawn up at her own Court in 1792, and offered by Lord Malmsbury in the French Plenipotentiaries, proposed to give to France such exclusive right in the British ports:13 that is, the project renewed the treaties of Paris of 176314 and of 1783,15 both of which renewed the commercial treaty of Utrecht of 1713, which contained such a stipulation.16
The foregoing considerations induced the undersigned to be unanimously of the opinion, that any part of the former treaties might be renewed consistently with good faith.
They then offered a renewal with limitations of the 17th. article of the commercial treaty, which, without compromitting the interests of the United States, would have given to France what her Ministers had particularly insisted on, as essential to her honor, and what they had given reason to expect would be deemed satisfactory. The overture however, finally produced no other effect, than to enlarge the demand of the French Ministers, from a partial, to a total renewal of the treaties; which brought the negociation a second time to a stand.
The American Ministers however, after a deliberation of some days, the progress of events in Europe continuing in the mean time to grow more unfavorable to their success, made an ulterior advance, going the whole length of what had been last insisted on. They offered an unlimited recognition of the former treaties, tho accompanied with a provision to extinguish such priviledges claimed under them as were detrimental to the United States, by a pecuniary equivalent to be made out of the indemnities which should be awarded to American citizens. A compensation, which, tho’ it might have cancelled but a small portion of the indemnities, was nevertheless a liberal one for priviledges, which the French Ministers had often admitted to be of little use to France, under the construction which the American Government had given to the treaties.
This offer, tho’ it covered the avowed objects of the French Government, secured an engagement to pay indemnities, as well as the power to extinguish the obnoxious parts of the treaties. To avoid any engagement of this Kind, the French Ministers now made an entire departure from the principles upon which the negociation had proceeded for some time, and resumed the simple, unqualified ground of their overture of the 23d. Thermidor;17 declaring, that it was indispensable to the granting of indemnities, not only that the treaties should have an unqualified recognition, but that their future operation should not be varied in any particular, for any consideration, or compensation whatever. In short, they thought proper to add, what was quite unnecessary, that their real object was to avoid indemnities, and that it was not in the power of France to pay them.
No time was requisite for the American Ministers to intimate, that it had become useless to pursue the negociation any farther.
It accorded as little with their views as with their instructions, to subject their Country perpetually to the mischievous effects of those treaties, in order to obtain a promise of indemnity at a remote period, a promise which might as easily prove delusive, as it would reluctantly be made, especially, as under the guarantee of the treaty of Alliance, the United States might be immediately called upon for succour, which, if not furnished, would of itself be a sufficient pretext to render abortive the hope of indemnity.
It only remained for the undersigned to quit France, leaving the United States involved in a contest, and according to appearances, soon alone in a contest, which it might be as difficult for them to relinquish with honor, as to pursue with a prospect of advantage; or else to propose a temporary arrangement, reserving for a definitive adjustment, points which could not then be satisfactorily settled, and providing in the mean time against a state of things, of which neither party could profit. They elected the latter, and the result has been the signature of a Convention.
Of property not yet definitively condemned, which the 4th. article18 respects, there are more than 40 Ships and cargoes, and a number of them of great value, at present pending for decision before the council of prizes; and many others are doubtless in a condition to be brought there, if the claimants shall think fit.
Guards against future abuses, are perhaps as well provided as they can be by stipulations.
The article respecting convoys19 may be of use in the West Indies, till it shall be more in the power of the French Government than it is at present, to reduce the corsairs in that quarter to obedience.
As to the article which places French privateers and prizes on the footing of those of the most favoured nations,20 it was inserted as drawn by the French Ministers, without any discussion of the extent of its operation; the American Ministers having, in former stages of the negociation, repeatedly and uniformly declared, agreeably to the rule of construction settled by the law of nations, that no stipulation of that Kind could have effect as against the British Treaty, unless the stipulation were derived from the former treaties, which it is here expressly agreed shall have no operation whatever. This article, however, is less consequential, as it will soon be in the power of the United States, and doubtless also within their wisdom, to refuse to the privateers and prizes of any nation, an asylum beyond what the rights of humanity require.
If with the simple plea of right, unaccompanied with the menaces of power, and unaided by events either in Europe or America, less is at present obtained than justice requires, or than the policy of France should have granted; the undersigned trust, that the sincerity and patience of their efforts to obtain all that their Country had a right to demand, will not be drawn in question.
5. Copy, Hamilton Papers, Library of Congress.
For background to this enclosure, see H to John Marshall, October 2, 1800.
6. The journal is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 307–42.
7. The Franco-American Treaty of Amity and Commerce, February 6, 1778, and the Franco-American Treaty of Alliance, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 1–44).
8. The Jay Treaty (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 245–67).
9. For the text of Articles 24 and 25 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 74.
10. See Article XXI of the instructions to Ellsworth, Davie, and Murray, October 22, 1799 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 304).
Article 17 (originally 19) of the Franco-American Treaty of Amity and Commerce, February 6, 1778, reads: “It shall be lawful for the Ships of War of either Party & Privateers freely to carry whithersoever they please the Ships and Goods taken from their Enemies, without being obliged to pay any Duty to the Officers of the Admiralty or any other Judges; nor shall such Prizes be arrested or seized, when they come to and enter the Ports of either Party; nor shall the Searchers or other Officers of those Places search the same or make examination concerning the Lawfulness of such Prizes, but they may hoist Sail at any time and depart and carry their Prizes to the Places express’d in their Commissions, which the Commanders of such Ships of War shall be obliged to shew: On the contrary no Shelter or Refuge shall be given in their Ports to such as shall have made Prize of the Subjects, People or Property of either of the Parties; but if such shall come in, being forced by Stress of Weather or the Danger of the Sea, all proper means shall be vigorously used that they go out and retire from thence as soon as possible” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 16–17).
11. “An Act to authorize the defence of the Merchant Vessels of the United States against French depredations” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845). description ends 572–73 [June 27, 1798]).
12. “An Act to declare the treaties heretofore concluded with France, no longer obligatory on the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845). description ends 578 [July 7, 1798]).
13. Article II of the Project of a Treaty of Peace, which James Harris, first Earl of Malmesbury, acting as a special peace commissioner to the French Republic, presented to the French plenipotentiaries in Paris on July 8, 1797, reads: “The treaties of peace of Nimeguen of 1678 and 1679, of Ryswick of 1697, and of Utrecht of 1713; that of Baden of 1714, that the Triple Alliance of the Hague of 1717; that of the Quadruple Alliance of London of 1718; the Treaty of Peace of Vienna of 1736; the Defintive Treaty of Aix la Chapelle of 1748; the Definitive Treaty of Paris of 1763; and that of Versailles of 1783, serve as a basis and foundation to the peace, and to the present treaty. And for this purpose they are all renewed and confirmed in the best form, so that they are to be exactly observed for the future in their full tenor, and religiously executed by both parties in all the points which shall not be derogated from by the present treaty of peace” (The Parliamentary History of England, from the Earliest Period to the Year 1803, XXXIII [London, 1818], 920).
14. The Definitive Treaty of Peace between Great Britain, France, and Spain, signed at Paris, February 10, 1763 (The Parliamentary History of England, from the Earliest Period to the Year 1803, XV [London, 1813], 1291–1305).
15. The Definitive Treaty of Peace between the United States and Great Britain, signed at Paris, September 3, 1783 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 151–57).
16. Ellsworth is referring to Article XXXVI of the Treaty of Navigation and Commerce between the Most Serene and Most Potent Princess Anne, by the Grace of God, Queen of Great Britain, France, and Ireland, and the Most Serene and Most Potent Prince Lewis XIV, the Most Christian King, signed at Utrecht, April 11, 1713, which reads: “It shall be lawful, as well for the ships of war of both their most serene royal Majesties, as for privateers, to carry whithersoever they please, the ships and goods taken from their enemies, neither shall they be obliged to pay any thing to the officers of the Admiralty, or to any other judges, nor shall the aforementioned prizes, when they come to and enter the ports of either of their most serene royal Majesties, be detained by arrest, neither shall searchers, or other officers of those places, make examination concerning them, or the validity thereof; but rather they shall have liberty to hoist sail at any time, to depart, and to carry their prizes to that place, which is mentioned in their commission of patent, which the commanders of such ships of war shall be obliged to shew: on the contrary, no shelter or refuge shall be given in their ports to such as have made a prize upon the subjects of either of their Royal Majesties. And if perchance such ships shall come in, being forced by stress of weather, or the danger of the sea, particular care shall be taken, as far as it is not repugnant to former treaties made with other Kings and States that they go from thence, and retire elsewhere, as soon as possible” (Charles Jenkinson, A Collection of All the Treaties of Peace, Alliance, and Commerce, Between Great-Britain and Other Powers, From the Treaty signed at Münster in 1648, to the Treaties signed at Paris in 1783, II [London: Printed for J. Debrett, Opposite Burlington House, Piccadilly, 1785], 57–58).
17. See the letter from the French ministers to the United States commissioners, 23 Thermidor, an VIII (August 11, 1800), in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, II, 330–32.
18. Article IV of the Convention of 1800 reads: “Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications, (contraband goods destined to an Enemy’s port excepted) shall be mutually restored on the following proofs of ownership …” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 459–62).
19. Article XIX of the Convention of 1800 reads: “It is expressly agreed by the contracting parties, that the stipulations above mentioned, relative to the conduct to be observed on the sea by the cruizers of the belligerent party, towards the ships of the neutral party, shall be applied only to ships sailing without convoy; and when the said ships shall be convoyed, it being the intention of the parties to observe all the regard due to the protection of the Flag displayed by public ships, it shall not be lawful to visit them: but the verbal declaration of the commander of the convoy, that the ships he convoys belong to the nation whose flag he carries, and that they have no contraband goods on board shall be considered by the respective cruizers as fully sufficient: the two parties reciprocally engaging not to admit under the protection of their convoys, ships which shall carry contraband goods destined to an enemy” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 473).
20. Article VI of the Convention of 1800 reads: “Commerce between the Parties shall be free. The vessels of the two nations, and their Privateers, as well as their prizes, shall be treated in the respective ports, as those of the nation the most favoured; and in general the two parties shall enjoy in the ports of each other, in regard to commerce, and navigation, the priviledges of the most favoured nation” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 462).