Draft of Instructions to Robert R. Livingston
[ca. 17 September 1801]1
You will herewith receive your commission as Minister Plenipotentiary from the U. States to the French Republic.
You will also be furnished with copies of the instructions given to Mr. Dawson who carried to France the modified ratification of the Convention of the 30th of Sepr. last, and of those to Messrs. Elsworth and Murray charged with negociating a ratification in the same form by the French Government. In these documents you will see the general policy entertained by the President on the subject of Treaties, his wishes & expectations with respect to the particular convention now confided to your attention, some of the steps at that time taken, to which you will be able to add those since taken, for giving it an anticipated effect on our part, and the assurances which the President desired might be conveyed of the friendship of the United States towards the French Republic, and of their disposition as well as his own, to cultivate harmony and good correspondence between the two nations. These assurances he wishes to be repeated by you in terms the best calculated to give them their proper effect in reestablishing on the part of France a confidence in this disposition, and in cherishing in her a thorough reciprocity of it towards the United States.
At the departure of Mr. Dawson it was hoped that no difficulty would arise in obtaining the final sanction to the instrument of which he was the Bearer; of the two alterations made in it here, one being a mere limitation of it to a reasonable term, the other a suppression of an article understood to have been rather acquiesced in than desired by the French Government. It appears notwithstanding, by the letters lately received from Mr. Murray & Mr. Dawson, that the suppression of this article, second in the Convention, is the single circumstance that embarrasses the ratification, and that altho’ a favorable turn to the discussions was hoped for, the issue remained uncertain.
This posture of the business, joined to the advance of the season, and the further destination of the public Ship which is to land you in France, are the motives which hasten your departure. The President is not without hopes that on your arrival at Paris you may find that the objection made by the French Government has been re-considered and withdrawn. Should this not be the case, it will be your first object by conciliatory & explanatory representations to remove the objection, and obtain a ratification in the form proposed from the United States.
Should your efforts for this purpose, be unsuccessful, your next will be directed to the re-instatement of the article struck out; keeping in mind, in this and every other case, the necessary reservation in favor of the Constitutional authority of the Senate. As this will restore the Convention to the precise form in which it was originally agreed to, with the sole exception of the limited duration, to which no objection is made, the expedient would be deemed infallible, if it had not appeared from the letters above referred to, that it had been proposed, without being accepted.
Should the restoration of the second article continue to be unsatisfactory, and a positive renunciation on our side of the claim of indemnities for spoliations, in consideration of a like abandonment on the other, of a claim to the Treaty of 1778. be insisted on, it cannot be doubted that an article to this effect, ought to be admitted, rather than that the negociation should have an issue inauspicious to the amity & intercourse of the two nations.
These hypothetical instructions have been called for by the tenor of the official advices received from Paris. When it is considered however that whether the second article be in or out of the Treaty, it must be always in the power of France to defeat any ulterior arrangement on the subjects of it; and more particularly when it is considered, that there can be no essential difference between the silence of the Treaty on those subjects, and an express relinquishment of them, every thing not provided for in such a transaction, being virtually abandoned by it, it cannot fail to occur, that the objection avowed, may be the ostensible, not the real ground of the difficulty.
On this supposition, it will be more practicable to fathom at Paris the real obstacles to a ratification, than to deduce them from the circumstances known at this distance.
Perhaps the present state of things in Europe, particularly the failure of the Northern Coalition, may have led the French Government to view in a different light, the articles which agree that free ships shall make free goods, that contraband of war shall be limited as therein defined, and that Convoys shall be exempt from search by national ships. Whilst the enemies of France do not observe the same rules, and there appears no prospect of uniting neutral nations in the project of maintaining them, these articles may be regarded as a sacrifice for which the same motives may not at present be felt, as before existed. Should such be found to be [the] case, the President is willing, if absolutely indispensable, that the Convention be so qualified as to suspend the operation of these articles whenever either of the parties shall be at war with a nation, with respect to which the other party is at peace, and acknowledges other2