Jefferson’s State of the Case of Schweighauser & Dobrée
[ca. Nov. 1788?]
In 1779 his Majesty ordered a small squadron to be equipped at his expence, to perform an occasional cruize. For reasons known to the court º only, they chose it should sail under the American flag, and an American commander. Captain Paul Jones was named Commodore for this purpose.
M. de Sartine º (then minister of marine) requested of Dr. Franklin that the American frigate the Alliance might be lent to strengthen this Squadron. This frigate was then commanded by Captain Landais, a French officer in the American service. She was then lying at Lorient, had been newly and most completely refitted, had all her stores and men aboard, and was on the point of sailing to America with Mr. Adams.
Dr. Franklin º lent her to the king. She performed the cruize, in which the English Baltic fleet was attacked, and the ships which convoyed it, taken. The squadron put into Holland. A difference arising between Captain Landais and his Commodore, Dr. Franklin required Landais to come to Paris, and the frigate then returning to Lorient, Dr. Franklin put her under the immediate command of Commodore Paul Jones.
This ºexpedition having been solely for the views of this court, and intended to be at their sole expence, the king gave orders to Monsieur le Ray de Chaumont that the expences of the Relache of the Alliance in Holland, and at Lorient, should be defrayed, and the ship delivered in the same condition, fit for sea, as she was received.
M. de Chaumont ordered Messieurs Gourlade & Moylon at Lorient to do this, and they furnished her, as may be seen by the account of their expenditures from the 11th of Feb. to the 12th of August 1780, amounting to 101,665–6s.
Landais, not content with the orders of Dr. Franklin, retires from Paris to Lorient, intrigues with the crew of the Alliance, gets them to revolt from the command of Commodore Paul Jones in his absence, takes possession of the ship, and in order to keep that possession, determines to sail immediately for America. But to enable him to do this, sea stores were necessary, the king’s commissioners Gourlade & Moilan being in the course of furnishing the daily necessaries only. He found at Lorient a house, Puchelberg & Co. who were the correspondents at that port of Mr. Schweighauser, º who was Agent of the United States for the port of Nantes. He applies to them for sea furnitures for the frigate. Gourlade & Moylan º object to the interference of Puchelberg. Landais thereupon takes upon himself ‘comme Capitaine de vaisseau au service des etats unis de l’Amerique commandant l’Alliance’ to give a peremptory order to Puchelberg, and by letter to Moylan demands by what authority he had stopped the provisions coming on board from Puchelberg, whom he calls ‘the Continental agent.’ He writes the same day to Mr. Schweighauser at Nantes, informs him that on the invitation of the officers and men of the Alliance he had retaken his command on board that frigate, that, Dr. Franklin having refused to restore him, he had restored himself; asks his advice about sailing, and his information if he knew into what port of America the Alliance was ordered by the Admiralty office and desires he will instruct Puchelberg to furnish supplies.
Puchelberg informs Schweighauser the same day, by express, of Landais’ application, but, desirous to keep hold of the job, without waiting for Schweighauser’s orders or the return of his express, he begins his furnitures.
Schweighauser º replies on the 18th to Landais, reminds him that the Navy board for the Eastern department [by letter of Dec. 13. 1778] ‘mention positively that you were to receive the instruction of the Plenipotentiary at the court of France, whose direction must be followed for her future destination, sais he writes to Puchelberg to furnish him ‘all those necessary for the daily subsistence of your officers and crew, until you receive further orders from Paris, and this conditionally that this measure is approved of by the Commandant at Lorient.’ For the commandant M. Thevenard, knowing of the revolt from their Commander which had taken place on board the Alliance had pointed on her the guns of the fort to prevent her going off, and Mr. Schweighauser in his letter to the Commandant sais ‘j’ai pensé que vous approuverez de ne pas laisser manquer la nourriture journaliere seulement au dit equipage jusques á ce qu’il vienne des ordres du Ministre et de M. le Docteur Franklin pour l’aplanissment de cette affaire.’
In conformity with this he answers the same day to Puchelberg that he consented to furnish Captain Landais ‘les provisions dont il pourra avoir besoin pour la nourriture journaliere des equipages de la fregate l’Alliance, jusques á ce que les ordres du ministre et de M. Franklin arrivent,’ and adds ‘je suis meme faché des diverses fournitures que vous avez deja faites dans un autre genre vû que j’ignore les demelés qu’ont eu le dit Landais et le Capitaine Jones, ainsi que leurs pouvoirs et droits respectifs.’
And on the 20th of July [i.e. June], he writes to Dr. Franklin for directions.
Dr. Franklin answers him on the 24th. ‘I should make no objection to your supplying the Alliance with such provisions as will be necessary for the present subsistence of the people that are on board her, many of whom are exchanged prisoners, honest and good men, who ought not to suffer famine for the folly of that gentleman [Landais] but the king having given order for paying all the necessary charges of that ship during her present relache at Lorient I do not see why the application has been made to you, unless the provisions furnished ever since her arrival there have been lately stopped, which I have not heard, because this is unnecessarily bringing a present expence upon me which I am ill provided to bear, besides commencing a new account of disbursements in another house, that will rather tend to confuse the affair, and answer no good purpose. I shall therefore write by this post to Lorient requesting that if the provisions have been stopt on account of Captain Landais’ misconduct, they may nevertheless be continued for the sake of the poor people.’
But those provisions had never been stopped, so this was an order to furnish nothing.1
Schweighauser writes to Puchelberg ‘j’ai reçu l’honneur de votre lettre du 19me. et fais note de ce que vous me marquez touchant l’Alliance, souhaitant toujours que vous en meliez le moins possible.’
And June 27 having now received Dr. Franklin’s answer, he writes again to Puchelberg ‘j’ai recu l’honneur de la votre du 23 Ct.—Je viens de recevoir reponse de Monsr. Franklin ou il approuve les ordres que j’ai donné. Il marque cependant que pour ne pas faire deux comptes de depenses, qu’il a ecrit á Lorient de fournir les besoins a l’Alliance, ainsi vous n’aurez plus á vous en meler si Monsieur Moylan en reprenant cette affaire vouloit rembourser vos comptes cela seroit bien, et epargneroit d’autres ecritures á ce sujet.’
He ºwrites to the same ‘j’ai l’honneur de la votre due 3 Ct. et suis surpris de ce que vous me dites, etre obligé de fournir au Capt. Landais tout le necessaire en tout genre. Tandis que je vous ai tres expressement dit que M. Franklin ayant donné des ordres á Lorient d’y pourvoir, vous n’aviez plus à vous en meler: en consequence vous auriez du marquer á M. Landais de s’adresser á M. Moylan, et demander aussi á ce dernier s’il a reçu les ordres de M. Franklin: autrement c’est nous faire une mauvaise affaire avec lui. Il convient donc qu’au reçu de la presente vous fassiez les demarches cy dessus mentionnées, en disant á M. Landais les ordres exprés reçu de M. Franklin á ce sujet, et qu’il s’addresse au Sieur Moylan puisque vous avez les mains liez de rien faire jusqu’á nouvel ordre.’
But it was now too late. The mischief was done. For Puchelberg, knowing that he had stepped into an office which had never been given him, and in which others were at the same time acting with regular authority from the king, that he had done it on the application of a person who had usurped the command of the vessel, had occasioned the crew to revolt from their regular officer, and was meditating to carry her from her station and service,2 that nothing was wanting but her sea stores to enable her to go off; and from all these considerations apprehending what kind of orders would arrive from Dr. Franklin, he had taken care to finish the job beforehand, and to make it as great a job as he could by furnishing, as Dr. Franklin sais in his letter of Aug. 10, necessaries in unnecessary quantities and at extravagant prices, superfluities and luxuries at the fancy of the captain, amounting in the total to 31,668–12–3. Thus enabled, Landais weighed anchor and went off in defiance of the commandant, tho’ the latter had ordered his garrison under arms, and made every shew of firing on the vessel. He did not do it however, thinking, as Landais probably foresaw, that it would be doing an ill service to an Ally to sink their vessel to prevent her deserting her station. On his passage to America he was arrested by his officers and crew, and on his arrival there was tried and removed from service.
Puchelberg º drew for the 31,668–12–3, on Mr. Schweighauser, who handed on the demand to Dr. Franklin, saying in the very letter which accompanied the draught ‘notwithstanding the positive orders I gave to the above house [Puchelberg & Co.] not to furnish any longer to that frigate they write that they have been obliged to continue’ &c.3
In fact º Dr. Franklin refused to pay the demand and referred Schweighauser to Puchelberg. Schweighauser therefore on settlement with Puchelberg refused to allow these furnitures, and Puchelberg immediately attached the arms and stores of the U.S. under the custody of Schweighauser at Nantes.4
The letters which are appealed to in support of these facts, contain also the motives on which Mr. Schweighauser founded his demand and Dr. Franklin his refusal of the money, for tho’ Mr. Schweighauser refused to pass this article in his private account with Puchelberg, yet, either thro’ friendship to Puchelberg, or for his own safety in every event, he passed the demand in his own name º on Dr. Franklin; urging 1. the letter of the Navy board of the º Eastern department of Dec. 13. 1778. desiring him to furnish the º wants of the Alliance: 2. that Dr. Franklin had always paid those º furnitures, and therby encouraged him to go on: 3. that no other º house at Lorient offered to furnish: 4. that Puchelberg & Co. being º his house en Comandite at Lorient, his representative there, had º therefore undertaken it: 5. that they could not judge of the necessity ºof the supplies, but were obliged to rely for that on Captain º Landais: 6. that his, Schweighauser’s orders of June 18.25.27. arrived º too late for their guidance as Landais insisted on being served ºon the 17th: 7. that the Commandant, M. Thevenard, permitted º the supplies inasmuch as he did not hinder them: 8. that Dr. Franklin himself approved of Schweighauser’s orders in his letter of June 24: 9. that Landais, if not supplied there, might have gone into some other port and obtained supplies on bottomry: 10. that Puchelberg & Co. had been so much intimidated by Landais’ threats that they did not dare to refuse him.5 11. that having acted for the best, they merit indulgence: and 12. that it must be very immaterial to the U.S. whether they pay Puchelberg or Gourlade & Moylan.
The answers to these observations, partly given by Dr. Franklin in his letters so far as he was then at liberty to speak out, and partly now supplied are:
1. The ºletter of the Navy board, as stated by Mr. Schweighauser himself, was to furnish to the Alliance, commanded by Capt. Landais, her wants: and to receive the instructions of the Plenipotentiary at the Court of France, whose directions must be followed for her future destination. This shewed him that the vessel was under the direction of Dr. Franklin, authorized him to follow the instructions of that minister, and not to aid an usurper who wanted to take the vessel from under those instructions.
2. Dr. Franklin had paid his preceding accounts, but it does not follow that he should pay every subsequent one which Mr. Schweighauser or his agents should present; he had paid them because he imagined them to be just: he refused this because he thought it unjust.
3. It is not true that no other house at Lorient offered to furnish. Gourlade & Moylan had been furnishing the ship regularly from the month of . When she returned into port, they forbid Puchelberg to step into their office, and continued to furnish, as their account proves.
4. Puchelberg, as the representative of Schweighauser could not have more authority than Schweighauser himself: and had Schweighauser himself been at Lorient he would not have been authorized to furnish a ship withdrawing herself from the instructions under which he knew her to be placed, and under which alone he was desired to supply her.
5. Puchelberg could well judge that it was improper for him to supply the ship, because Gourlade & Moylan forbade him; and because he sais that the authority pretended to be given him was from an officer who had usurped the command, had produced a revolt, notorious to the whole town of Lorient, insomuch that the guns of the fort were pointed on her to prevent her going off, and he was told by Landais himself that the supplies were to enable him to go off.
6. Puchelberg should have waited the return of his express. He could not begin his supplies till the 17th and on the 19th his express returned to him with Schweighauser’s orders to furnish only the nourriture journaliere. He could not have supplied much on the three first days, the 17. 18. and 19. and it is evident the important supplies were furnished long after, because the vessel, which waited for them only, did not sail till three weeks after. The supplies of the first three days then were without orders, and those of the ensuing three weeks were against orders.
7. Had Monsieur Thevenard given express permission, it could not have bound the U.S. whose officer he was not. As the officer of the king, the force of his permission may be urged when Mr. Schweighauser’s representatives apply to the king for their reimbursement, and the force of that logic tried also, which supposes everything permitted which is not hindered.
8. Schweighauser’s orders of the 18th were for ‘la nourriture journaliere des equipages, jusques á ce que les ordres de M. Franklin arrivent.’ Dr. Franklin never gave an approbation of nor made any reference to these orders. In his letter of the 24th. which reached Schweighauser the 26th. or 27th. he expressed his own orders, in his own words, for ‘provisions necessary for the present subsistence of the people.’ So far it concurs with the expressions in Schweighauser’s orders: but he makes it conditional ‘if the provisions have been stopped on account of Capt. Landais’ misconduct.’ But as they had not been stopped, the condition failed on which the order hung. It never became an order then at all.
9. To help a man to do wrong because, if you do not, another will, was never yet received as a justification in any case criminal or civil. Besides, if Puchelberg had been honest enough to refuse, and the ship had gone into another port, persons honest enough to refuse might have been found there also, and the ship thus forced into a return to duty. The arrest of Landais by his crew, which took place at sea, might then have taken place on the coast of Europe, and the ship have been restored to the service destined for her. If Landais had gone into another port and hypothecated the vessel, in virtue of what would the money have been claimed? Of that hypothecation. But there is no hypothecation here, nor would an hypothecation have bound the vessel in another port, if the lender had known all the circumstances which were known to Mr. Puchelberg.
10. The police of Lorient surely sufficed to protect Mr. Puchelberg against the threats and intimidations of Captain Landais.
11. Mr. Puchelberg does not merit indulgence, as having acted for the best. On the contrary, it is evident, that either a greediness for gain, or an ambition to be dubbed Agent for the U.S. has made him persist in open defiance of reason and right. The opposition of Gourlade & Moylan, the avowal of Landais that he had assumed the command of the vessel of his own authority, and that he wanted supplies to enable him to carry her off, the pointing the guns of the fort on her to prevent her going off, the public notoriety of the revolt in the town of Lorient, were so many admonitions to furnish her nothing: the express order of Mr. Schweighauser received on the 19th. was an express admonition to furnish but the ‘nourriture journaliere des equipages,’ and that of the 27th. recieved probably the 29th. ‘de ne s’en meler plus.’ In defiance of all this he goes on furnishing all the fancies and luxuries desired, and even the necessaries in unnecessary quantities and at extravagant prices: and it is not till the 3d of July that he is ‘bold enough’ as Mr. Schweighauser expresses himself in one of his letters, to inform him that he has been obliged to furnish Captain Landais ‘tout le necessaire en tout genre, tandis que je vous ai tres expressement dit que M. Franklin ayant donné des ordres á Lorient d’y pourvoir, vous n’aviez plus á vous en meler.’ He was not ‘bold enough’ to say what he had done, till he knew it could not be corrected, and that the vessel would be gone before an answer could be received. His previous letters had let out as little as possible. All these circumstances prove that he acted malâ fide, and such was the opinion of Mr. Schweighauser himself who sais in his letter of Sep. 7. ‘I cannot excuse them entirely because they have acted against my positive and repeated orders.’ They did not do it then on his authority, but malâ fide. They do not deserve indulgence then, but to be deemed as having done it in their own wrong.6
12. But as it is urged to be indifferent to the U.S. whether they pay for supplies to Gourlade & Moylan, or to Puchelberg. They are now free to say they were to pay nobody, and that for this reason they protested decidedly from the first moment against furnishing any thing unless the king’s commissaries had stopped their regular supplies, which they had not done. Nor is it indifferent to them to pay these supplies and seek reimbursement from the king. His order was to furnish them in nature, not their worth in money. And they do not chuse to compromit themselves with this court in a contest for these supplies, for such part of them as was reasonable perhaps this country may be as willing to pay Puchelberg, or those who stand in his place, as they would have been to have paid their own commissaries. For such part as is unreasonble, no country ought to pay. For these Mr. Puchelberg’s demand should be made against Landais himself, who is in America, and supposed to be in condition to pay. On his personal credit Mr. Puchelberg must be presumed to have made these advances, since he did not do it on that of the ship, nor by authority from the U.S. nor from Mr. Schweighauser, but in direct opposition to the repeated orders of both.
If it be decided that the U.S. are not answerable for these supplies, then the arrest of their arms by Puchelberg, Schweighauser & Dobrée has been wrongful, and the wrong should be repaired. The injury they sustained by the detention of these arms in a war whose principal difficulties proceeded from the want of arms, cannot be estimated nor repaired. But some parts of the injury can be estimated. The worth of those quite destroyed in the magazine, the repairs of those still capable of repair, the interest of the capital thus locked up in the warehouses of Nantes, can and ought to be valued and repaid, and the arms and stores immediately delivered up to the U.S.
MS (DLC: TJ Papers, 17: 2962–7); 12 pages entirely in TJ’s hand; undated; with label in TJ’s hand which reads: “Schweighauser & Dobrée. State of that case”; brackets in MS. Actually this is a Tr of an earlier state of the case, of which the PrC is in DLC: TJ Papers, 232: 42037–42048, but which TJ used as Dft, making a number of significant changes after PrC had been executed. Another PrC (DLC: TJ Papers, 232: 42290–42300); entirely in Short’s hand, being a fair copy of MS, the Tr of which (missing) must have been presented by TJ to Montmorin. In the notes below the more significant differences between MS as here finally stated and the text as it stood in the state indicated by its PrC are pointed out, and the references to PrC there are to be understood as meaning TJ’s PrC and not Short’s PrC of the final text.
This state of the case may have been drawn up earlier than Nov. 1788. However, it is included here because, after concluding the negotiations concerning the Consular Convention and before it was signed (negotiations which incidentally related to such infractions of consular jurisdiction in America as the seizing of flour destined for the French fleet), TJ brought this affair of the seizure of arms to the attention of Montmorin. On 4 Nov. 1788 that minister wrote La Luzerne: “Je me suis fait rendre compte de ce qui s’est passé dans cette affaire, qui existe deja plusieurs années.” Montmorin had learned from the correspondence between Vergennes and Castries on the complaints of Franklin that the matter was to have been brought to the attention of the ministry, but that Barclay, wearied with the delay, had carried it before the consular court of Nantes, a step that blocked its consideration in council. Franklin had not renewed his complaints. But, added Montmorin: “Vous penserez, surement, comme moi … que le Roi ne peut point se dispenser d’avoir egard à celles que fait aujourd’hui M. Jefferson; en effet, il est de principe que les effets apartenantes à un souverain etre saisis, et que nous avons autant d’interest que les Etats Unis que le principe contraire ne soit point consacré par notre exemple. D’après cela il me semble que le Roi ne saurait laisser subsister la saisie dont il est question, et qu’il ne s’agit que de déterminer la forme dans laquelle elle devra étre accueillie.” (Arch. Aff. Etr., Corr. Pol., E.-U., xxxiii; Tr in DLC).
1. Preceding eight words not in PrC.
2. In PrC the text as originally worded read: “For Puchelberg, knowing that he had stepped into an office which had never been given him, and in which others were regularly acting with authority from the king, that he had done it on the application only of a revolted vessel meditating to go off,” &c. TJ altered this in MS to read as above.
3. In PrC at this point appears the following: “and in another of September 7 sais ‘Your Excellency wants me to have my recourse on the above house unless I excuse them. I cannot excuse them entirely, because they have acted against my positive and repeated orders.’” TJ deleted these words in MS in order to make a more effective use of them in the concluding part of his argument; see note 6.
4. At this point in PrC occurs the following, deleted in MS by TJ: “Puchelberg afterwards failed, and not having refunded the money to Schweighauser & Dobrée, took up the attack on their own account, to save themselves.” In margin opposite is the date “1786. May 14.”
5. This item interlined in MS and is not in PrC; subsequent numbers were altered to accommodate this insertion.
6. As originally phrased in PrC, this passage read: “…till he had done it beyond the reach of correction. All these circumstances prove that he acted malâ fide, and that what he did should be in his own wrong.” TJ then strengthened the indictment by placing here the matter deleted above (see note 3).