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especially if its abrogation can be applied as a set-off against some existing French claim.
Art. 14th. If the alterations already proposed are made in the 23d and 24th articles, then the 14th article, as before observed, must be abolished.
Art. 17th. The construction put on this article by the Government 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 are 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 United 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 circumstances, is described in Mr. Jefferson's letter to Mr. Hammond, dated the 9th of September, 1793. in the following words: “Thus, then, the public ships of war of both nations (English and French) enjoy a perfect equality in our ports ; 1st. in cases of urgent necessity ; 2d. in cases of comfort or convenience; and 3d., in the time they choose to continue.” And such shelter and accommodation are due to the public ships of all nations, on the principle of hospitality among friendly nations. It will also be expedient explicitly to declare that the right of asylum stipulated for the armed vessels of France and their prizes, gives no right to make sale of those prizes.
But when prize ships are so disabled as to be incapable of putting to sea again, until refitted, and when they are utterly disabled, some provision is necessary relative to their cargoes. Both cases occurred last year. The Government permitted, although with hesitation and caution, the cargoes to be unloaded, one of the vessels to be repaired, and part of the prize goods sold, to pay for the repairs, and the cargo of the vessel that was found unfit ever to go to sea again, was allowed to be exported as prize goods, even in neutral bottoms. The doubts on these occasions arose from the 24th article of the British treaty, forbidding the sale of the prizes of privateers, or the exchanging of the same in any manner whatever.
But as French prizes were entitled to an asylum in our ports, it was conceived to be a reasonable construction of it, to allow of such proceedings as those above mentioned, to prevent the total loss of vessels and cargoes The 25th article of the British treaty demands attention; as it is therein stipulated that no future treaty shall be made that shall be inconsistent with that or the 24th article. An.
other doubt arose, whether the British treaty did not, in good faith, require the prohibition of the sale of prizes made by the National ships of France, as well as those made by her privateers ; especially seeing our treaty with France gave her no right to sell any prizes whatever : but, upon the whole, it was conceived that the United States having before allowed the sale of such prizes, and the prohibition in the 24th article of the treaty being distinctly pointed against the sale of the prizes of privateers, it was thought proper to permit the former practice to continue, until the Executive should inake and publish a prohibition of the sale of all prizes, or that Congress should pass a prohibitory law.
Art. 22d. 11. in 'new modelling the treaty with France, the total prohibition of the sale of prizes in the ports of the party remaining neutral should not be agreed on, at least the right of each Power to make at its pleasure such prohibition, whether they are prizes of Na. tional ships or privateers, should be acknowledged, for the reason more than once suggested—to prevent a repetition of claims upon unfounded constructions ; such as under the present article, that a prohibition to an enemy of either party, is a grant to the other of the thing forbidden.
Art. 238 and 24th. These have been already considered, and the alterations proposed have been mentioned.
There have been so many unjust causes and pretences assigned for capturing and confiscating American vessels, it may perhaps be impossible to guard against a repetition of them in any treaty which can be devised. To state the causes and pretences that have been already advanced by the Government of France, its agents and tri. bunals, as the grounds of the capture and condemnation of American vessels and cargoes, would doubtless give pain to any man of an ingenuous mind, who should be employed on the part of France to negotiate another treaty, or a modification of the treaties which exist.
It is not desired, therefore, to go farther into detail on these matters, than shall be necessary to guard, by explicit stipulations, against future misconstructions, and the mischiefs they will naturally produce.
Under pretence that certain ports were surrendered to the English by the treachery of the French and Dutch inhabitants, Victor Hugues and Lebas, the Special Agents of the Executive Directory, at Guadaloupe, have declared that all neutral vessels bound to or from such ports shall be good prize.
Under the pretence that the British were taking all neutral vessels bound to or from French ports, the French Agents at St. Domingo (Santhonax and others,) decreed that all American vessels bound to or from English ports, should be captured ; and they have since declared such captured vessels to be good prize. The French Consuls in Spain bave, on the same ground, condemned a number of American vessels, merely because they were destined to, or coming from, an English port.
Under the pretence that the sca-letters or passports prescribed by
the commercial treaty for the mutual advantage of the merchants and navigators of the two nations, to save their vessels from détention and other vexations, when met with at sea, by presenting so clear a proof of the property, are an indispensable document to be found on board; the French confiscate American vessels destitute of them, even when they acknowledge the property to be American.
Because horses and their military furniture, when destined to an enemy's port, are, by the 24th article of the commercial treaty, declared contraband, and as such by themselves only liable to confisca. tion ; Higues and Lebas decreed all neutral vessels, having horses or any other contraband goods on board, should be good prize; and they accordingly condemned vessels and cargoes.
I'he ancient ordinances of the French monarchs required a variety of papers to be on board neutral vessels, the want of any one of which is made a cause of condemnation ; although the 25th article of the commercial treaty mentions what certificates shall accompany the merchant vessels and cargoes of each party, and which, by every reasonable construction, ought to give them protection. It will therefore be advisable to guard against abuses by descending to particulars : to describe the ship's papers which shall be required, and to declare that the want of any other shall not be a cause for confiscation : to fix the mode of manning vessels as to the officers, and the proportion of the crews who shall be citizens ; endeavoring to provide, in respect to American vessels, that more than one-third may be foreigners. This provision will be important to the Southern States, which have but few native seamen.
The marine ordinances of France will show what regulations have been required to be observed by allied as well as neutral Powers in general to ascertain and secure the property of neutrals. Some of these regulations may be bighly proper to be adopted ; while others may be inconvenient and burdensome. Your aim will be to render the documents and formalities as few and as simple as will consist with a fair and regular commerce.
Art. 25th and 27th. These two articles should be rendered con. formable to each other. The 27th says, that, after the exhibition of the passport, the vessel shall be allowed to pass without molestation or search, without giving her chase, or forcing her to quit her intended course. The 25th requires that, besides the passport, vessels shall be furnished with certain certificates, wbich of course must also be exhibited. It will be expedient to add, that if, in the face of such evidence, the armed vessel will carry the other into port, and the papers are found conformable to treaty, the captor's shall be condemned in all the charges, damages, and interest thereof, which they shall have caused. A provision of this nature is made in the 11th article of our treaty with the United Netherlands.
Art. 28th. The prohibited goods here mentioned, have no relation to contraband, but merely to such as by the laws of the country are forbidden to be exported. Yet in the case of exporting horses from Virginia, which no law prohibited, in the winter of 1796, this article
was applied by the French Minister to horses, which, by the French treaty, are contraband of war. And a letter from the Minister to Victor Hugues and Lebas, informing them that the American Government refused to prevent such export of horses by the British, is made one ground for their decree above mentioned.
Art. 30th. The vessels of the United States ought to be admitted into the ports of France, in the same manner as the vessels of France are admitted into the ports of the United States. But such a stipulation ought not to authorize the admission of vessels of either party into the ports of the other, into which the admission of all foreign vessels shall be forbidden by the laws of France, and of the United States respectively. With this restriction, the principles of the 14th article of the treaty with Great Britain afford a liberal and unexceptionable precedent. A restriction like that here referred to, will be found in the first paragraph of the third article of the British treaty.
The commerce to the French colonies in the East and West Indies, will doubtless be more or less restricted, according to the usage of other European nations. Yet, on account of the disarranged condition of the French navigation, probably a larger latitude of trade with their colonies will be readily permitted for a term of years : and perhaps the mutual advantages thence resulting, will be found so great, as to induce afterwards a prolongation of that term, to which the course or habit of business may contribute.
While between the United States and France there shall subsist a perfect reciprocity in respect to commerce, we must endeavor to extend our trade to her colonies to as many articles as possible. Of these, the most important are provisions of all kinds, as beef, pork, flour, butter, cheese, fish. grain, pulse, live stock, and every other article serving for food, which is the produce of the country, horses, mules, timber, planks, and wood of all kinds, cabinet ware, and other manufactures of the United States ; and to obtain in return all the articles of the produce of those colonies, without exception, at least to the value of the cargoes carried to those colonies.
There have been different constructions of the consular convention. The French have contended for the execution of their consular decisions, by the marshal or other officer of the United States; and their Minister of Justice has formally stated, in a report to the Minister of Foreign Affairs, that the judicial sentences of the American Consuls in France, will be executed by certain officers of justice in that country. The legal opinion of the law officers of the United States, which the Government has adopted, opposes such a construction. The French have also contended that deserters from French vessels ought to be apprehended by the judicial officers of the United States, upon other evidence than the original shipping paper, or rôle d'equipage; whereas the district judges have insisted that the consular convention requires the original rôle to be produced.
This claim was lately revived by the Consul General of the French Republic. The correspondence on this occasion will be joined to the other documents which accompany these instructions.
The United States cannot consent to the erecting of foreign tribunals within their jurisdiction. We consider the judicial authority of Consuls, as described in the consular convention, to be voluntary, not compulsory, in the country where they reside; and that their decisions, if not obeyed by the parties respectively, must be enforced by the laws of their proper country; and such a provision you will see has been made in France, where a penalty of 1400 livres is imposed on the citizens who refuses obedience to a consular decision in a foreign State.
The consular convention will expire in about four years; and if any great difficulties arise in settling the terms of a new one, that which exists must take its course ; but if the French Government should be silent on the subject of the consular convention, silence may be observed on your part.
The ports of the United States being frequented by the vessels of different belligerent Powers, it became necessary to regulate the times of their sailing. The President therefore adopted what was understood to be the received rule in Europe ; and ordered, that after the sailing of a vessel of one of the belligerent Powers, twenty-four hours should elapse before an armed vessel of the enemy of the former should set sail. This rule has not been duly respected by the armed vessels of France and Great Britain.
As the tranquility of the United States requires that no hostile movements be commenced within their jurisdiction; and the interests of commerce demand an entire freedoin to the departure of vessels from their ports, it may be expedient expressly to recognize the above mentioned rule.
It will also be expedient to agree on the extent of territorial jurisdiction on the sea coast; and in what situations bays and sounds may be said to be land-locked, and within the jurisdiction of the sovereign of the adjacent country.
On the supposition that a treaty will be negotiated to alter and amend the treaties which now exist between France and the United States, the following leading principles, to govern the negotiation, are subjoined.
1. Conscious integrity authorizes the Government to insist, that no blame or censure be directly or indirectly imputed to the United States. But, on the other hand, however exceptionable, in the view of our own Government, and in the eyes of an impartial world, may have been the conduct of France, yet, she may be unwilling to acknowledge any aggressions; and we do not wish to wound her feelings, or to excite resentment. It will therefore, be best to adopt on this point, the principle of the British treaty, and terminate our differences in such manner, as, without referring to the merits of our re. spective complaints and pretensions, may be the best calculated to produce mutual satisfaction, and good understanding."
2. That no aid be stipulated in favor of France during the present war.
3. That no engagement be made inconsistent with the obligations of any prior treaty.