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Indeed the greater part, probably nearly all the captures and confiscations in question, have been committed in direct violation of that treaty, or of the law of nations. But the injuries arising from the capture of enemies property in vessels of the United States, may not be very extensive; and, if for such cap. tured property, the French government will, agreeably to the law of nations, pay the freight and reasonable demufrage, we shall not, on this account, any farther contend. But of ship tiniber, and naval stores, taken and confiscated by the French, they ought to pay the full value ; because our citizens continued their traffic in those articles, under the faith of the treaty with France. On these two points, we ought to expect, that the French government will not refuse to do us justice : and the more, because it has not, at any period of the war, expressed its desire, that the commercial treaty should, in these respects, be altered.
Besides the claims of our citizens, for depredations on their property, there are many arising from express contracts, made with the French government, or its agents, or founded on the seizure of their property, in French ports. Other claims have arisen from the long detention of a multitude of our vessels in the ports of France. The wrong hereby done to our citizens, was acknowledged by the French government, and inl some, perhaps in most of the cases, small payments towards indemnifications have been made : the residue still remains to be claimed.
All these just demands of our citizens, will merit your attention. The best possible means of compensation must be attenipted. These will depend on what you shall discover to be practicable in relation to the French finances. But an exception must be made, in respect to debts due to our citizens by the contracts of the French government, and its agents, if they are comprehended in any stipulation ; and an option reserved to them, jointly or individually, eitler to accept the means of payment which you shall stipulate, or resort to the French government, directly for the fulfilment of its contracts.
Although the reparation for losses sustained by the citizens of the United States, in consequence of irregular or illegal captures, or condemnations, or forcible seizures, or detentions, is of very high importance, and is to be pressed with the greatest earnestness, yet it is not to be insisted on as an indispensable condition of the proposed treaty. You are not, however, to renounce these claims of our citizens, nor to stipulaie that ihey be assumed by the United States, as a loan to the French governnient.
In respect to the alterations of the commercial treaty with France, in the two cases which have been principal subjects of complaint on her part, viz. enemies' property in neutral -hips, and the articles contraband of war; although France can have
no no right to claim the annulling of stipulations at the moment, when by both parties they were originally intended to operate; yet, if the French government press for alterations, the President has no difficulty in substituting the principles of the law of nations, as stated in the 17th and 181h articles of our commercial treaty with Great Britain, to those of the 23d and 24th articles of our commercial treaty with France : and in respect to provisions, and other articles pot usually deemed contraband, you are to agree only on a temporary compromise, like that in the 18th article of the British treaty, and of the same duration. If, however, in order to satisfy France, now sbe is at war, we change the two important articles before mentioned, then the 14th article of the French treaty, which subjects the property of the neutral pation found on board enemies' ships, to capture and condemnation, must of course be abolished.
We have witnessed so many erroneous constructions of the treaty with France, even in its plainest parts, that it will be nccessary to examine every article critically, for the purpose of preventing, as far as human wisdom can prevent, all future misinterpretations. The kind of documents necessary for the protection of the neutral vessels, should be enumerated and minuiely described ; the cases in which a sea-letter should be required, may be specified ; the want of a sea-letter should not of itself be a cause of confiscation, where other reasonable proof of property is produced ; and where such proof is furnished, the want of a sea-letter should go no further than to save the captor from damages, for detaining and bringing in the neutral vessel. The proportion of the vessel's crew, which may be foreigners, should be agreed on. Perhaps it will be expedient to introduce divers other regulations, conformably to the marine laws of France. Whenever these are to operate on the commerce of ihe United States, our safety requires, that as far as possible, they be fixed by treaty. And it will be desirable to stipulate against any ex post facto laws, or regulation, under any pretence whatever.
Great Britain has often claimed a right, and practised upon it, to prohibit neutral nations carrying on a coinmerct with her enemies, which had not been allowed in time of peace. On this head, it will be desirable to come to an explicit understanding with France; and, if possible, to obviate the claim by an express stipulation.
Such expensive depredations have been committed on the commerce of neutrals, and especially of the United States, by the citizens of France, under preience that her enemies (particularly Great Britain), have done the same things, it will be desirable to have it explicitly stipulated, that the conduct of an enemy towards the neutral power, shall not authorize or excuse the other belligerent power in any departure from the law of nations, or the stipulations of the treaty: espeF3
cially that the vessels of the neutral nation shall never be cap . tured or detained, or their property confiscated, or injured, because bound to or from an enemy's port, except the case of a blockaded port, the entering into which may be prevented, according to the known rule of the law of nations. And, it may bé expedient to define a blockaded place, or port, to be one actually invested by land, or naval forces, or both, and that nó declaration of a blockade, shall have any effect without such actual investment. And no commercial right whatever should be abandoned, which is secured to neutral powers by the European law of nations.
The foregoing articles being those wbich the French government has made the ostensible grounds of its principal complaints, they have naturally been first brought into view. But the proposed alterations and arrangements, suggest the propriety of revising all our treavies with France. In such revision, the first object that will attract your attention, is the reciprocal guarantee in the eleventh article of the treaty of alliance. This guarantee, we are perfectly willing to renounce. The guarantee by France, of the liberty, sovereignty, and independence of the United States, will add nothing to our security, while, on the contrary, our guarantee of the possessions of France in America, will perpetually expose us to the risk and expense of war, or to disputes and questions, concerning our national faith.
When Mr. Genet was sent as the minister of the French Republic, to the United States, its situation was embarrassed, and the success of its measures problematical. In such circumstances, it was natural that France should turn her eye to the mutual guarantee : and, accordingly it was required, in Mr. Genet's instructions, to be “ an essential clause in the new treaty," wbich he was to propose : and on the ground “ that it nearly concerned the peace and prosperity of the French pation, that a people whose resources increase beyond all calculation, and whom nature had placed so near their rich colonies, should become interested, by their own engagements, in the preservation of those islands.” But, at this time, France, powerful by her victories, and secure in her triumphs, may less regard the reciprocal guarantee with the United States, and be willing to relinquish it. As a substitute for the reciprocal guarantee may be proposed, a mutual renunciation of the same territories and possessions, that were subjects of the guarantee and renunciation in the sixth and elevenih articles of the treaty of alliance. Such a renunciation, on our part, would obviate the reason assigned in the instruction to Mr. Genet, before cited, of future danger from the rapidly growing power of tbe United States. But, if France insists on the mutual guarantee, it will be necessary to aim at some modification of it.
The existing engagement is of that kind which, by writers on the law of nations, is called a general guarantee; of course, the casus fæderis can never occur, except in a defensive war.. The nature of this obligation is understood to be, that when a war really and truly defensive exists, the engaging nation is bound to furnish an effe&ual and adequate defence, in co-operation with the power attacked: whence it follows, that the na. tion may be required, in some circumstances, to bring forward its whole force. The nature and extent of the succours demandable, not being ascertained, engagements of this kind are dangerous, on account of their uncertainty: there is always hazard of doing too much, or too little, and, of course, of being involved in involuntary rupture.
Specific succours have the advantage of certainty, and are less liable to occasion war. On the other hand, a general guarantee allows á latitude for the exercise of judgment and discretion.
On the part of the United States, instead of troops, or ships of war, it will be convenient to stipulate for a moderate sum of money, or quantity of provisions, at the option of France : the provisions to be delivered at our own ports, in any future defensive wars. The sum of money, or its value in provisions, ought not to exceed two hundred thousand dollars a-year, during any such wars. The reciprocal stipulation on the part of France, may be to furnish annually the like sum of money, or an equivalent in military stores and cloathing for troops, at . the option of the United States, to be delivered in the ports of France.
Particular caution, however, must be used in discussing this subject, not to admit any claims on the ground of the guarantee, in relalion to the existing war; as we do not allow, that the casus fæderis applies to it. And, if the war should continue after your arrival in France, and the question of the guarantee should not be mentioned on her part, you may yourselves be silent on the subject, if you deern it most prudent.
It will be proper here, to notice such articles of the treaty of amity and commerce, between the United States and France, as have been differently, construed by the two governments, of which it may be expedient to amend, or explain.
ARTICLE 2. The assent of the United States, in their treaty with Great Britain, to the do&rine of the law of nations, respecting enemies' property in neutral ships, and shịp timber, and naval stores; and in some cases provisions, as contraband of war, the French government has chosen to consider as a voluntary grant of favours, in respect to commerce and navigation, to Great Britain, and that consequently the same favours have become common to France. This construction is so foreiga froin our ideas of the meaning and design of this article,
it shews the necessity of reviewing all the articles; and, however clear they may appear, of attempting to obviate future misconstructions by declaratory explanations, or a change of terms. • Art. 5. France has repeatedly contended, that the imposition of fifty per cents per ton on French vessels arriving in the United States, is contrary to the fifth article of the treaty. The arguments in support of this pretension are unknown; but it is presumed to be unfounded. The reciprocal right of laying “ duties or imposts of what nature soever,” equal to those imposed on the most favoured nations, and without any other restri&tions, seems to be clearly settled by the third and fourth articles. The fifth article appears to have been intended merely to define, or qualify the rights of American vessels in France. It is however desirable, that the question be understood, and all doubt concerning it removed. But the introduction of a principle of discrimination between the vessels of different foreign nations, and in derógation of the powers of Congress, to raise revenue by uniform duties on any objects whatever, cannot be hazarded. The naturalization of French vessels, will, of course, be considered as admissible. • ART. 8. The stipulation of doing us good offices, to secure peace to the United States, with the Barbary powers, has never yet procured us any advantage. If, therefore, the French Government lays any stress on this stipulation, as authorizing a claim for some other engagement from us, in favour of France, it may be abandoned ; and, especially, if its abrogation can be applied as a set off against some existing French claim.
ART. 14. If the alierations already proposed, are made in the 23d and 24th articles, then this 14th article, as before observed, 'must be abolished.
ART. 17. The construction put on this article by the govern, ment of the United States, is conceived to be reasonable and just; and is therefore to be insisted on. The tribunals of the respective countries, will consequently be justified, in taking cognizance of all captures made within their respective jurisdictions; or by illegal privateers; and those of one country will · be deemed illegal, which arc fitted out in the country of the other remaining neutral: seeing to permit such arming, would violate the neutral duties of the latter.
It will be expedient to fix explicitly the reception to be given to public ships of war, of all nations. The French ministers have demanded, that the public ships of the enemies of France, which at any time, and in any part of the world, had made prize of a French vessel, should be excluded from the ports of
the Upited States; although they brought in no prize 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