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BXINO •AJf AOOOVITT OF Sfte iForeCfln XlelatConis of the itountvs, nOM TBX FIRST TREATT WITH FRAWCE, IN 1778, TO TBK PRESENT TIME. SECOND EDITION— WITH ADDITIONS. By THEODORE LYMA]^r, Jb. IN TWO VOLUMES. VOX., z. BOSTON; WELLS AND LILLY,-COURT STREET. 1828. ''^. 68195 •*4*: w r ADVERTISEMENT TO THE FIRST EDITION. This work is intended to give a view of the Foreign Relations, an account of the policy pursued, or, as it is sometimes termed, a diplomatic history of the country, from the first intercourse of the Government with Europe in 1776 — 7 — », to the end of the year 1814. We have selected that period for the close of the ** account," as a general pacification then took place, and those considerations, which, during the wars of the French revolution, gave so much importance to our negotiations abroad, were, in consequence of the state of peace, entirely put at rest. We have given a condensed exposition of some of the important principles of the Laws of Nations, brought into discussion since the year '92, though the nature of the work has not permitted an extended dissertation on any of those topics. It is proper to observe that, in preparing this work, great use has necessarily been made of the collection of American state papers, and of the journals of Con- gress, both of the Confederation, and of the present government, together with the documents, debates, &c. to be found in the Parliamentary History of Great Britain, and other works of that description. The valuable collections of the Ebeling and Warden libra- ries on American subjects, now in the possession of Harvard University, and the excellent collection of American tracts in the Athenaeum in this town, may be consulted to advantage on any topic, relative to this country. Boston, April 182G. ADVERTISBMBNT TO THB SECOND EDITION. In the present edition this work has been continued to the beginning of the year 1828, including an ac- count of our relations with the Barbary Powers and the South American states. That part, which extends to the treaty of Ghent, is now presented in a second edition with considerable additions. Since the publi- cation of the first volume, we have had the advantage of consulting the secret correspondence of our minis- ters and commissioners abroad during the Congress of the Confederation, as well as the papers of some emi- nent citizens, that have been employed on diplomatic missions by the Federal government. We take this opportunity to express the great obligations we are under to those gentlemen, by whose obliging attention we have been permitted to examine many valuable letters and documents. In the arrangement of the work, the different sub- jects have been treated, as far as was practicable, in a chronological order, with the exception of Sweden and Denmark. The negotiations of the United States with those powers have been so limited since the treaty of Ghent, that it has not been thought advisable to devote separate chapters to their consideration. In the appendix to the second volume will be found, besides other matter, the laws, regulating the privi- leges of foreign ministers in this country as well as the pay and emoluments of our own, together with the principal important acts, relative to discriminating im- portation duties and tonnage rates. . ijn. ■ > Boston^ October lQ2ii. ^ ^^v ♦ "J^ •*-'. CONTENTS. CHAPTER I. PRELIMINARY RExMARKS. CONFEDERATION, &c. Powers of First Congress as to Foreign Relations defec- tive — Adoption of Confederation — Powers of Constitution of '89 — Powers of House of liepresentntives as to Treaties — Foreign business first done by Secret Committees, very labo- rious — Department for Foreign Affairs established — Address of letters — First Secretary — Salary — Department under the Constitution — One of the Cabinet — Right of President to re- move — United States never sent or received an " Ambassador" — Rules for reception — Diplomatic Agents of the Confedera- tion — Expenses of the Diplomatic Corps under the Confedera- tion — Salaries, &c. under the Constitution — Private instruc- tions to Ministers — Gold Medal for Foreign 'Ministers — Cere- monial of first Minister very difficult to u . -^e — Somewhat ludicrous — Extract from Secret Journals — *. resent mode of accrediting, '. . CHAPTER H. Pa&o TREATIES OF AMITY AND COMMERCE, AND OF AL- LIANCE OF 1778, WITH FRANCE. Confederation little hopes, or means, of obtaining foreign assistance — Deane sent to France in '7G to obtain supplies — VI CONTENTS. Pag* Remnrkabic letter of Vcrgcnnes — Frnnklin, Deane and Jeffer' son elected Commissioners in '7G — Jeflcrson excused from (^oing — Private aid early from France — Lee chosen in hit place — Not officially received — Alarming situation — Private account of affairs at French Court — Franc disposed to with- draw all succour — Commissioners had secret Correspondence in London — News of Burgoync's Surrender — Treaties signed — Account of Negotiation — Difficulty respecting Molasses — • Commissioners proi^ented at Court — Treaty of alliance dan- gerous — Great attention to Franklin — Anecdotes of him— Gerard appointed Minister to America — Sails in d^Estaing^s Flag Ship — Presented to Congress — Ceremonial — Franklin elected to Versailles — Franklin complains of number of Minis- ters — Complimentary Letter to Luzerne — Misunderstanding between Adams and Vergcnnes — Franklin's request to return — Medal to Luzerne — Keturns to America — Succeeded by Jef- ferson — De la Luzerne succeeds Gerard — Jefferson buys Deane's papers, it CHAPTER III. TREATY OF 1782 WITH THE NETHERLANDS. Second power to make a Treaty with United States — War between United Provinces and England — Causes — Lee, failing at Berlin, enters secretly into a correspondence with the Re- gency of Amsterdam — not suspected by Sir Joseph Yorke — Early correspondence between Van Berckel and commission- ers — Lee agrees, at Frankfort, on a Treaty with Neufville — Secret discovered by capture of Laurens— Amsterdam richest City in Europe — Laurens's letters from Tower of London — Laurens chosen to Holland — Subsequently Adams — His letters from Holland — States General very dilatory in recognising In- dependence — Three classes of Treaties — Remarks on Na- tional Law — Neutral Rights badly defined — United States first commercial rival of England — Other nations rivals in war — -*' Mr. Adams concludes a Treaty, and makes Loans — Van Berc- kel appointed Minister to United States, 70 CONTXNTi. Tii CHAPTER IV. TREATY OF 1783 WITH GREAT BRITAIN. PiH« Lord North attempts a Peace — America early conqaercd every thing she sought — Members of Parliament see Franklin privately — Ministry, as well as Opposition against acknowledg- ment of Independence — Lord Chatham speaks against it- Mediation of European courts — Unsuccessful — Adams' cor- respondence with Vergennes respecting official character — Austria and Russia not in favour of Independence — General Conway's resblution — Decides the question of War — New Ministry — Oswald and Grenville sent to Paris — Not officially — Failed — Lord Cholmondelly visits Franklin — Shelburne's Administration — Franklin's correspondence — Oswald instructed to acknowledge the Independence — Account of Negotiation from secret journals — Adams, Franklin, Jay, Laurens and Jel- ferson authorized to treat — Meet at Paris — Jay's firmness in declining to treat — Opposed to Vergennes and Franklin — Gets Oswald's commission altered — DiflicuKy as to loyalists — Make a compromise through violation of instructions — Anecdote of Jay — Conclude a Treaty — Boundaries — Fisheries — Agreed to Treaty without consulting France — Violation of Instructions — Explained — Michel's Map — France and Spain desirous of Fish- eries and Western Country — De Rayneval's opinion of boun- daries — Treaty honourable and favourable to America — Un- popular in England — Ministry in minority on first division — Necessary sacrifice, 86 CHAPTER V. TREATIES OF 1785 AND 1799 WITH PRUSSIA. Fourth power in Europe to conclude a Treaty — Lee ap- pointed in '77 to Berlin and Vienna — Not received by either court — Remarks on Austria — His full powers stolen at Berlin — His account of that business — Hessians made to pay same Tin CONTENTS. Pa|« toll as cattle— Cnrmichaers letter — Letter from King to Lee — Letters from Prussian Minister — Adams respecting Eliot — Prince Henry — Treaty of *85— Peculiar provisions — Private war abolistied — Treaty of '99 — Last mission to Prussia politi- cal — Dangerous policy, 131 CHAPTER VI. TREATY OP 1794 WITH GREAT BRITAIN. Confederation no power over Commerce — Commercial con- ventions witli France, Holland, Prussia and Sweden — No trade —Trade to England only important one — Depended on an annual act of Parliament — Policy at variance with Europe — Mr. Adams chosen to St. James — First envoy — Adams' address to King and the answer — Well received — Notes with Lord Caermarthen — Presentation — England refused to make a trea- ty — Account of violations of treaty of '83 — Debts — Interest — Remarlts on Navy and Commerce — Symptoms of war in Eu- rope — Pass off — Inscription on gate at Cherson — Confederacy dissolved — Randolph's letter on state of Parties — Hammond, first envoy to this country — Morris — Pinckney — Origin of op- pressive acts by belligerents — War between France and Eng- J land — Provisions contraband — Rules of neutrality — Danger of a war — Executive appoints Mr. Jay to London — Jay's instruc- tions — Decides question of neutrality — Concludes a treaty — Unpopular — Disturbances on account of treaty — Eventually " favourable to the United States, 164 CHAPTER VII. TREATY OF 1795 WITH SPAIN. Spain powerful at time of Rovolution— 'Family Compact-— Great American possessions — Franklin appointed minister in '77 to Madrid — Important letter— A. Lee goes to Bilboa— Let- ter of Grimaldi — Europe secretly hostile to England — Spain COlfTlSWTS. fx aro!(!« the coalition— StrUcs to reconcile Franco and England — FniU — Declnrcfl war ngninst Enjflnnd in '79 — Jay sent to Spain— Received— Details of his procccdinpfs— Makes no trea- ty — English government sent Cumberland to Madrid — Fails- Important instructions — De Florida Blanca's mistnlie respect- ing invitation to Jay — Carmichael, Charge — Presented at Court — Letter concerning la Fayette — Gnrdoqui, Spanish Chargfe— Treats respecting boundaries— Nothing done — South and North divide on the navigation of the Mississippi — South in minority — Short and Carmichael, commissioners to Spain — Remarks on Mississippi — Important instructions — Spain, hav- ing entered the coalition of '9.3, unwilling to treat — Indians- Acts of hostility In Kentucky — Short — Viar — Jaudenes — Peace of Basle — Godoy — Pinckney sent to Madrid — Treaty of San Lorenzo el Real with Prince of Pence — Right of deposite at New Orleans suspended — Eastern and Western boundaries of Louisiana — France opposes claims of United States — Govern- ment take possession of W. Florida — Folch — Kemper — Spoli- ations — Settled by transfer of E. Florida — Humphreys — Yrujo — Bowdoin — Intercourao renewed In 1814 — Erving, . . . Pa|« •i u I. « I* ' I (i - CHAPTER VIII. / CONVENTION OF 1800 WITH FRANCE. Jefferson elected again to France — Jefferson's letters on French Revolution — Permission to return — Jay's letter on Federal Government — De la Luzerne is succeeded by De Moustier — Morris succeeds Jefferson and Ternan de Moustier — Washington's illness — French Revolution embarrassing to Government — Perplexing question whether a Minister should be received from the French Republic — M. Genet — Death of the King — Excellent remark of Morris — Less enthusiasm for the Revolution — Proclamation of neutrality — Remarks on that subject — Very difficult negotiation with Genet — His demands examined — Monroe goes to France — Government solicit the recall of Genet — His unsuitable language — Dismissed — Is suc- ceeded by Faychet — More temperate — Adet succeeds Fauchet I i> 209 VOL. I. B CONTENTS. — Outrage on Fauchet — France extremely dissatisfied with state of things — Monroe opposed to administration — Want of instructions — Jay's treaty — Pinckney succeeds Monroe — Not received by tlie Directory — Ordered to leave France — Extra- ordinary proceeding — Pinckney, Marshall and Gerry appoint- ed — Not received, though cards of hospitality sent them — Instructions — W. Y. Z. — Talleyrand proposes to treat with one Commissioner only — Rejected — Pinckney and ' rshall leave France — Talleyrand's account of negotiation — Gerry remains — Origin of parties — HostilitiesT-Talleyrand brings on, by means of Pichon, another ne£;otiation — Ellsworth, Mur- ray and Davie appointed to France — Properly received — First Consul — Account of negotiation — Convention — Bonaparte de- sirous of peace — French government poor — Convention has- tily made, Page 283 CHAPTER IX. CESSION OF LOUISIANA f , Purchase, a good one — Necessary for Wester country — In '90 de Moustier made enquiries respecting Weste. country- French possessions in North America extinguishei by treaties of '62 and '63— Louisiana secretly ceded to Fr ,ce — Great uneasiness in America — War with France — C lition with England — France prepares to lake possession of il -Prevented t*. by renewal of war — Monroe sent to France — iportant in- '1 structions — Details of negotiation — First price exx^rbitant — - Ceded to United States — Terms — Made a "territory" and then a state — Letter of British officer on Louisiana, . . . 367 CHAPTER X. CONTINENTAL SYSTEM. - * ■M Livingston Minister in France — Turreau and Serrurier in this country — America very prosperous — Berlin Decree — CONTENTS. Pa(e Great Calamity — Beginning of Continental System — All Con- tinent, except Turkey, in the League — America only neutral — Milan Decree — Canton, in China, only port not hlockaded — * Embargo — Bayonne and Rambouillet Decrees — Cause of War against France — Repeal of French Decrees — England refused to acknowledge the validity of the act — Antedated Decree — French Spoliations — No indemnity — Angry correspondence with France, 408 CHAPTER XI. RELATIONS WITH RUSSIA. ..U.J Not originally applied to for aid by Congress of '77 — Little known at that time in Europe — Relations friendly — Armed neutrality — Dana sent to Russia in '80 — Propriety of applying to foreign courts — Izard's, Adams' and Franklin's opinions — Instructed to propose America as a member of the armed neutrality — Not received by the Empress — French ministers abroad kind — Dana in awkward situation at St. Petersburg^ Letters to Russian ministers — Singular opinion of Empress — Russia not disposed to acknowledge independence — Anecdote of Franklin and Count du Nord — Neutrality awakens great anxiety — Congress, at return of peace, took earliest steps to prevent a connexion with '^ Armed Neutrality" — Instructions to ministers in Europe not to agree to support neutrality by force of arms — Adams, minister to Russia — Pahlen to this country — Daschkoff — No treaty or commercial convention, though great trade, 423 CHAPTER XH. RELATIONS AND TREATY OF 1827 WITH DENMARK. No diplomatic intercourse — Letter of Rosencrone to Frank- lin — John Paul Jones sent to Copenhagen — Erving sent to Denmark in 1811 — Account of spoliations — French and Danish 3ui ooirrsirrs. Pag« privateerfl — Captures — Convoy cases — New aggresdpn on neutral rights — Remarks on that subject — None of the con- ■■''-• demnations of 1809, 1810, revised — Convoy cases not restored — Erving leaves Copenhagen — Treaty of 1826 — Provisions — Wheatoa cbai^ge to Copenhagen — Settles the Claim, . ^. . 437 CHAPTER XIII. TREATIES OF 1783—1816—1828 WITH SWEDEN. Sweden, only power that voluntarily offered its friendship to Congress of confederation— No applications specially made to Northern Powers in early part of war — M. de Creutz of- fered in '82 to make a treaty — Treaty of Paris of '83 — Pro- visions similar to that of Netherlands — No minister till 1813 — M. de Kantzow — Jonathan Kussell of Massachusetts — De- mand for property r.onfiscated at Stralsund — Relations friendly with Sweden — Kuti!f>?ll makes treaty in 1816 with Sweden — Renews the subject of the claims — Correspondence — Settled by private contract — Mr. Hughes and Mr. Appleton, charg6f Treaty of 1827 — Stackelberg charge from Sweden, < 447 : 1 . ; . I -^ J '1 ;r -^m^-' I:* ' , .i*Jr.= .',, TREATIES, &c. CHAPTER I. PRELIMINARY REMARKS. CONFEDERATION, &c. Powers of First Congress as to Foreign Relations defective — Adoptiofi of Confederation — Powers of Constitution of '89 — Powers of House of Representatives as to Treaties — Foreign busineisfrst done by Se- cret Committees^ very laborious — Department for Foreign Affairs established — Address of letters — First Secretary — Salary — Depart' ment under the Constitution — One of the Cabinet — Right of President to remove — United States never sent or received an " Ambassador''^ — Rules for reception — Diplomatic Agents of the Confederation — Expenses of luc Diplomatic Corps under the Confederation — Sala- ries., ^c. under the Constitution — Private instructions to Ministers — Gold Medal for Foreign Ministers — Ceremonial of first Minister very difficult to arrange — Somewhat ludicrous — Extract from Secret Journals — Present mode of accrediting. We propose, in this chapter, briefly to recite the power of Congress under the confederation of '78, and of the govern- ment under the constitution of '89, in regard to the relations of the country with foreign states, together with such cir- cumstances, as properly belong to the management of foreign affairs. It is well known, that the fust assembly of dele- gates from the thirteen colonies, or parts of colonies, was held in September '74, in Philadelphia. The meeting was convened on the proposition of the Province of Massachusetts Bay ; and was annually renewed by a vote of the Congress VOL. I. 1 I'RELIMINARY REMARKS. CONFEDERATION, &C. itself, till 1778, when the different colonies or provinces, having instructed their delegates to sign the articles of " Con- federation and perpetual Union," agreed on by Congress in the preceding November, an organized government, usually known by the name of the Confederation^ was established. Before this period, the delegates to the Congress acted by the special instructions of the Province Legislatures, or of the committees of the people, — by whom they were chosen. These instructions were of various import ; — some delegates, indeed, were not furnished with any powers whatever ; — their discretion was unlimited. But in general the repre- sentatives were authorised to consult for the public good and general welfare, either by securing the liberties of the pro- vinces, or by establishing a just and safe commercial ar- rangement with the mother country. A Congress, thus com- posed, was not invested with constitutional authority. Even, if the instructions of the delegates had been binding on their respective legislatures, the different legislatures would not have been bound in an equal degree ; for some delegates were without instructions, and to those, who were furnished with them, a great variety of powers were given. The co- lonies, or provinces, were not parties to any instrument; they did not jointly agree to support any one measure ; much less the great system of measures by which the revolution war was conducted. But the exigency of the case, the dan- ger of the country, the necessity of preservation, supplied the deficiencies of form. The Congress of '74 did not ap- pear to believe, that a war would take place — they did not expect a separation from the mother country — they took no direct, immediate measures to resist, by force, the unjust pretensions of the British government. This Congress re- mained in session six weeks with closed doors. They adopt- ed a non-importation, non-exportation, and non-consumption agreement — they prepared a petition to the king — and an address to the people of Great Britain ; — public documents, which will always be admired, as long as good writing, man- ly sense, and just practical notions, both of civil and political liberty, merit applause. The Congress of '75 entered upon % PRELIMINARY REMARKS. CONFEDERATION, &C. 3 the war, and, from the time General Washington was appoint* ed to command the continental forces to the confederation in '78, they levied men, borrowed money, sent ministers, con- cluded treaties, and performed most of the acts of a sovereign government. In '78, as we have already said, the confede- ration*' was adopted by the thirteen colonies, under the title of the " United States of America." This is the date of a constitutional government in this country. Whether as par- ties to this instrument, or to the act of Union of '89, the states severally and mutually pledged their faith, in as so- lemn a manner as could be done, to abide by the determi- nation of the United States in Congress assembled on all questions that, by the confederation or the constitution, were subjected to their deliberation and control. This was a re- gular contract, obligatory in an equal manner, and to a de- fined extent. We shall only mention the provisions of the first " Union" that relate to the subject of this work. " The United States, in Congress assembled, shall have the sole and exclusive right and power — Of determining on peace and war, except in the cases mentioned in the sixth article — Of sending and receiving ambassadors — Entering into treaties and alliances, pro- vided that no treaty of commerce shall be made, whereby the le- * The idea of a confederacy was not altogether new. A scheme of this sort was discussed in a meeting of delegates at Albany in 1754, though for a different purpose. The king in council rejected the ap- plication. In July '75, a year before the Declaration of Independ- ence, Congress took the matter of a confederacy and union into con- sideration, the inconvenience and even fatal danger of their actual condition being abundantly apparent. The first sketch was proposed by Dr. Franklin, a member from Pennsylvania. This did not differ materially from the articles afterwards agreed on, though America could, by no means, at that period, be considered aa separated from England. An amended copy of this scheme was afterwards reported by a committee in July '7G. This is said to be in the handwriting of Mr. Dickinson, the well known author of the Farmers' Letters. It is evident, Congress did not think it important to adopt articles of per- petual union till a reconciliation with Great Britain became utterly hopeless. The articles were extremely discussed ; and were finally accepted in November 1777. PRELtMIKARY REMARKS. CONFEDERATION, &C. :%^ gialative power of the respective states shall be restrained from imposing such imports and duties on foreigners, as their own peo- ple are subjected to, or from prohibiting the exportation or im- portation of any species of goods or commodities whatsoever" — " To borrow money or emit bills on the credit of the United States, transmitting every half year to the respective states an account of the sums of money, so borrowed or emitted" — " The United States, in Congress assembled, shall never engage in a war, nor grant let- ters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value there- of, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appro- priate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be rais- ed, nor appoint a commander in chief of the army or navy — unless nine states assent to the same." Each state had one vote ; but no state could have more than seven delegates in the Congress. Peace having been made, the nation was speedily con- vinced that the confederation was altogether inadequate in all matters of trade, for all purposes of revenue and com- merce, and of intercourse of every description with foreign states. The present constitution was adopted, and went into operation on the 4th of March 1789. Under this in- strument. Congress has power to " lay and collect taxes" — " to borrow money on the credit of the United States" — " to regulate commerce :" but the " President has power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur, and he shall nominate, and by and with the advice and con- sent of the Senate, shall appoint ambassadors, other public ministers," &c. This is the mode in which the constitution directs that foreign intercourse shall now be maintained. Treaties are the supreme law of the land, and all courts must take notice of them. The judiciary cannot declare a treaty to have been violated and therefore void. This pow- er belongs solely to Congress ; but it is not settled, whether '■^ PRELIMINARY REMARKS. CONrSDERATIOlT, &C. ive more the courts have not power to declare an article of a treaty unconstitutional. " In the year 1796, after the treaty with Great Britain was ra- tified by the President and Senate, and was proclaimed by the Pre- sident, it became a question how far, under the constitution, a treaty was binding on Congress as a legislative body. In the dis- cussion of this question, in the House of Representatives, it was contended on the one hand, that a treaty was a contract between two nations, which, when made by the President, by and with the advice and consent of the Senate, was binding on the nation, and that a refusal by the House of Representatives to carry it into ef- fect, was breaking the treaty and violating the faith of the nation. On the other hand it was contended, that a treaty which required an appropriation of money, or any act of Congress to carry it into effect, was not, in that respect, obligatory till Congress had agreed to carry it into effect, and they were at full liberty to make or withhold such appropriation or act, without being chargeable with violating the treaty, or breaking the full faith of the nation. Ac- cordingly the House of Representatives passed a resolution calling on President Washington to lay before them the instructions to the Minister (Mr. Jay), who had negotiated the treaty with Great Britain, and the correspondence and documents, except so far as on account of the pending negotiation, they were improper to dis- close. The President declined a compliance with the request, stating, among other reasons, that a treaty duly made by the Pre- sident and Senate, became the law of the land and was obligatory ; that the assent of the House of Representatives was not necessary to the validity of a treaty, and, therefore, the papers, requested, could not come under the cognizance of the House of Representa- tives, except for the purpose of impeachment, which was not stat- ed to be their object. The House of Representatives thereupon passed resolutions, disclaiming the power to interfere in making treaties, but asserting their right, whenever stipulations were made on subjects committed to Congress by the constitution, to delibe- rate on the expediency of carrying them into effect ; and in legis- lating on several treaties then before them, they struck out the words " that provision ought to be made by law," and substituted words, which declared merely the expediency of passing the neces- sary laws. In the session 1815, IC, the question, as to the effect of 9 DEPARTMENT OF FOREIGN AFFAIRS. ' a treaty, arose again in Congress, and was elaborately discussed in both branches. A commercial treaty had been made at London, in the month of July preceding, between the United States and Great Britain, by which it was agreed to abolish the discriminating duties on British vessels and cargoes, then existing under the acts of Congress ; and a bill was passed in the House of Representatives particularly enacting the same stipulations as the treaty contained. But it was rejected in the Senate, that body having passed a bill of their own, which simply declared that so much of any act of Con- gress, as was contrary to the treaty, should be deemed and taken to be of no force or effect. This bill was amended, in the House, by striking out the words '^ and declared," and substituting the original bill which the Senate had rejected ; these amendments were, however, rejected in the Senate, and the difference between the two houses, terminated in the appointment of committees of conference, by whose recommendation the above mentioned amend- ments of the House were relinquished, and the bill passed as pro- posed by the Senate in a declaratory shape, with some modifica tions not affecting the principles in dispute."* DEPARTMENT OF FOREIGN AFFAIRS. The Congress, or Government, during the confederation, consisted of but one branch or house. The number of the delegates was usually between fifty and sixty, f It was a legislative body, and its business, both foreign and domestic, in the outset, was done altogether by committees. They had originally no executive officers. The powers of the go- vernment were not then distributed in the beautiful manner we have since seen them, under the present constitution, but were all assembled or concentrated in one body or sin- gle department. This circumstance, connected with the state of the nation, must have made the office of delegate, * Sergeant. — Constitutional law. * , i ■ t Fifty-six signed the Declaration of Independence. ., ' • «-;i||. DSPARTMKNT OT FORSIOM ATFAIltS. during the revolution vrar, exceedingly laborious and respon- sible. The first committee to undertake the foreign business of the country was instituted in November '75. It was a se- cret committee, and called the committee of " foreign cor- respondence." Subsequently, it was called the committee of foreign affairs, and was provided with a secretary. This committee did a great deal of work ; they had the manage- ment of all the foreign correspondence, then voluminous, and of all negotiations, particularly those that led to the treaties with France and Holland.* But the evils and great incon- veniences of this mode of conducting the delicate, complicat- ed, and very difficult transactions, in which the United States were engaged with other nations, a description of business daily accumulating in amount, were soon felt and will readily be perceived. The committee was abolished in January '81, and an office called the " Department of Foreign Affairs" established in its place. The necessity of this change is well explained in the preamble to the report, made on the occasion. " The extent and rising- power of these United States, entitle them to a place among the great potentates of Europe, while our political and commercial interests point out the propriety of culti- vating with them a friendly correspondence and connexion. That, to render such an intercourse advantageous, the necessity of a com* * One of the greatest difficulties consisted in the safe conveyance of letters during the war. We had neither packet boats, nor regular channels of conveyance. In order to avoid suspicion a general direc- tion, in regard to the form of letters and addresses, was given in these words : — " When you write to me, please to write upon common post paper, to fold your letters as nearly in the size and after the manner of this as may be — to seal them with wafers instead of wax, and to send them by the way of Holland to the care of Mr. Adams, or to Messrs. De Neufville and Son, or Messrs. Ingraham and Bromfield of Amsterdam, and to be careful not to swell them unnecessarily above the size of common mercantile letters. If these particulars are not attended to, all the precautions, I can take, will not keep them out of the hands of the ministry." 2)spa.rtmi:nt or ronEioN aftaiss. ;-!; pe^ent knowledge of the intereats, views, relation and systems of tk ae potentates is obvious. That n knowledge in its nature so comprehensive is only to be acquired by a constant attention to the state of Europe, and an unremitted application to the means of ac- quiring well grounded information. That Congress are, moreover, called upon to maintain with our ministers at foreign courts a regu- lar correspondence, and to keep them fully informed of every cir- cumstance and event, which regards the public honour, interest and safety. Whereupon, Resolved, that an office be forthwith es- tablished for the department of foreign affairs, to be kept always in the place, where Congress shall reside. That there shall be a Secretary for the despatch of the business of the said office, to be styled " Secretary for Foreign Afliiirs." That it shall be the duty of the said Secretary to keep and preserve all the books and papers belonging to the department of foreign affairs, to receive and re- port the applications of ail foreigners, to correspond with the mi- nisters of the United States at foreign courts, and with the minis- ters of foreign powers, and other persons for the purpose of ob- taining the most extensive and useful i;)tbrmution, relative to foreign affairs to be laid before Congress, when required, also to transmit such communications, as Congress shall direct, to the ministers of these United States and others at foreign courts and in foreign coun- tries; the Secretary shall have liberty to attend Congress, that he may be better informed of the affairs of the United States, and have an opportunity of explaining his reports respecting his de- partment." ^ In the following year the style of this officer was altered. He was called " Secretary to the United States of America for the department of foreign affairs," and was allowed 4000 dollars, exclusive of the expenses of his office. Robert R. Livingston of New-York was the first Secretary of State ; he was chosen in August '81, but having resigned in June '83, John Jay, at that time in Europe, was elected to suc- ceed him. Mr. Jay remained in office till the adoption of the constitution. This office was not expressly recognised by the confederation ; no provision having been made in that instrument for establishing by name this or any other department, but it was enacted by a resolution, as the pre- sent department of state has been subsequently created by a DEPARTMENT OF rORKION AFFAIRS. ''• law of Congress. The institution of these departments was authorized by the Olh article of the confederation — ** the power to appoint such civil officers as may be necessary for managing the general oflairs of the United States." Tbii office was the foundation of the present department of State, established, by law in '89, no provision having been made for it in the constitution, (except the general one under ar- ticle 1. sec. 8. provision 17.) It was originally called the " Department of Foreign AlFairs," and the officer, the " Se- cretary for the Department of Foreign Affairs," terms sub- sequently altered to ^( Department of State," and " Secretary of State." The duties of this officer have not materially varied in consequence of the change of government. The Secretary of State now forms one of the Cabinet, and in the whole conduct of that department, receives his instructions from the President. No arrangement having been made by Congress for the appointment of this officer, the President exercises the right, conferred on him in other cases, of mak- ing a nomination in the usual form to the Senate. He has also under a construction of the constitution (now admitted,} the right of removing this oflicer, or the head of any other department at his pleasure. The law of '89 is considered as having settled this important point. The bill did not pass without an able and earnest opposition, but as the clause giv- ing the power of removal to the President, was stricken out, the appearance, even of conferring this light upon him by the Legislature, was removed, and it could be regarded as a quality only incident, under construction, to the right of nomination, as it regards all superior officers of the United States, " whose appointments" were " not otherwise provid- ed for." The salary of the Secretary of State is now 6000 dollars. Of late years various matters have been referred to the examination, or the mana&;emcnt of this officer, that do not in strictness belong to (he Department of Foreign Affairs ; for the duties of this department are not so specific, or easily defined, as those of either of the others. This cir- cumstance has produced an accumulation of business, and it is probable the government will find it necessary to create « VOL. I. 2 10 .*:Ht4 DIPLOMATIC CORPS. W'. fifth department, for the purpose of relieving the Secretary of State of all those affairs that do not properly belong to the Army, Navy, or Treasury. This might well be called the department of domestic affairs, or homo department, per- haps a more significant and convenient name. .!■> Jl< DIPLOMATIC CORPS. >A] Milk .• • :•! , y.)i l,'i»'. ■ .-. .« .1-. . ' . . . ,, ■ t- '• V The United States have never sent or received an " am- bassador,"'"' in the usual diplomatic sense of that term. In- deed, the form of our government appears entirely to forbid it, while we confine ourselves to the European meaning of the rank. An ambassador has a representative character ;— he represents the person and dignity of his sovereign. " The preeminence of ambassadors manifests itself chiefly in the particular ceremonial of their reception in the country, where they are appointed to reside. They are entitled to speak at the audiences they obtain, with Jieads covered^ — to keep a canopy or throne in their dwellings," &c. An ambassador is, of course, often employed to manage the affairs of his na- tion like other public ministers, but his representative cha- racter of the honour and dignity of the sovereign, constitutes in his particular case, a minister of the first rank. This lat- ter quality an American minister cannot well possess, for he represents nothing but the nation. The government, it is true, has a right to require that roinisterjs shall be received from them of the rank of ambassadors, but the distinction will obviously depend upon something different from the representation of the person of the sovereign. The English, we. believe, are not much in the habit of employing ambas- * The Congress of 1783 introduced a slight difference in the cere- monial of receiving an ambassador. He was allowed to sit covered in their presence, and the President rose not only when he was introduc- ed, but also when he read his address. Ministers did not enjoy these privileges. DIPLOMATIC CORPf. 11 tadora ; most of their ministers being envoys, with full pow- ers. But thei. are certain courts in Europe to which it seems to be a sort ot rHquctte to send an ambaaaador. The sovereigns of the HoUvSl; of Bourbon, (France, Spain, and the two Sicilies) arcf uafjally represented at their respective capitals by a niir i^^ter of this rank. Difficulties, havve find in the Recueil dcs Pieces officielles, (Tom. 8. No. 17.) an nrrangcment, signed by the eight powers,'**' parties to the treaties oi 1814 — 1815 on this subject. As it is quite short, and is now probably adopted in most of the European courts, we take this opportunity of translating it ; the provisions appear just ; they are at least very convenient. "Art. 1. Diplomatic Agents are divided into three classes. I. Ambassadors, Legates, or Nuncios. 2. Envoys, Ministers and other agents accredited l)y the Sovereigns. 3. Charges d'Affaires, ac- credited by the Department of Foreign Relations. ' "Art. 2. Ambassadors, Legates, or Nuncios, are alone invested with a representative character. >• ■• " Art. 3. Diplomatic agents sent on a mission extraordinary, arie not entitled, on this account, to a superior rank. " Art. 4. Diplomatic agents of the respective classes take rank according to the date of the official notice of their arrival. The representatives of the Pope are not affected by this article. "Art. 5. Each State shall determine upon an uniform mode of receiving diplomatic agents of the different classes. "Art. 6. Neither relationship nor family or political alliances between courts confer rank upon their agents. " Art. 7. The order in which the signatures of Ministers shall be placed in acts or treaties between several powers, that allow of the alternat, shall be determined by lot." itj^i^ r, ir. (Mjaci During the confederation, the public officers of the United States abroad were called, either Charges d'Affaires, Com- missioners, or Ministers Plenipotentiary. We are not aware * Austria, Spain, France, Great Britain, Portugal, Prussia, Russia and Sweden. . ■• ,,\v ntitiii 12 DIPLOMATIC CORPS. that the confederation ever received or employed an Envoy Extraordinary. At present the government has established by its practice three classes, viz. Cliarge d'AfTaires ; Minis- ter Plenipotentiary and Envoy Extraordinary. The Corps Diplomatic of this country in Europe now consists either of Charges d'Affaires or Envoys Extraordinary with full powers. The salaries of public ministers varied much under the confederation. At first no fixed compensation was allowed ; but in October 1779 a salary of £2500 was established for the ministers in France, and of £ 1000 for the secretaries, in full for services and expenses. This rate, greater than the present remuneration, continued till '84, when Congress resolved that the salary of a minister should not exceed 9000 dollars ; but it does not appear that an outfit was an- nexed. The confederation generally paid their ministers better than is now done ; for the expense of living in Eu- rope, particularly on the continent, has increased at least one half the last forty years. We have still remaining a re- port of tliJu Secretary of Foreign Affairs on the expenses of his department in 1782, — in some respects an amusing docu- ment, though, as it regards the expense of the ministers, obviously quite loose and hasty. ' , , ^... " Dr. Franklin has a part of Mr. Chaumont's house at Passy, he keep? a chariot and pair, and three or four servants, and gives a dinner occasionally to the Americans and others. His whole expense, as far as I can learn, is very much within his income. Mr. Adams lives in lodgings ; keeps a chariot and pair, and two men servants. He has hitherto retained a private secretary, who will, in the absence of Mr. Dana, it is presumed, be paid by Con- gress. I have lately heard that Mr. Adams was about to take a bouse. Mr. Dana's salary, even if he should assume a public cha- racter in a country where the relative value of money is so high, that if I am well informed, an elegant house may be hired for fifteen guineas a year, is very ample. Of Mr. Jay's manner of living, I have been able to give no account, but I should conclude from the price of the necessaries of life in that part of Spain in which he lives, from the port the Court and the people about it maintain, and above all, from its sitting in different parts of the 1 K '■A e] CO -■■-■'r be 1 tvi ■;• PI th ch ex Bi tn _, C( 4 all 1 siv DIPLOMATIC CORPS. ti Kingdom, that to live in the same style with Dr. Franklin, his expenses must amount to nearly the double of theirs. But as every conjecture of this kind must be very uncertain, all I can do is to lay before Congress the relative expense, as far as 1 can learn it, be- tween the different places at which the ministers reside, taking Philadelphia for a common standard. Paris, if wine, clothing, and the wages of servants are included, is about twenty per cent, cheaper than Philadelphia ; Amsterdam, ten ; and at Madrid, the expenses of a family are somewhat higher than at this place. But from the unsettled state of those who follow the court, their travelling equipage and charges must greatly enhance this expense. Congress will make their own deductions from these facts^after allowing for their inaccuracy. " Annual expense of the Department of Foreign Affairs, exclu- sive of contingencies : — " Secretary of the United States for the Department of Foreign Affairs .... ^4000 1st Under Secretary, Lewis R. Morris . . 800 2d Under Secretary, Peter S. Du Ponceau . 700 Clerk, the Rev. Mr. Tetard . . . ' 500 Dr. Franklin Mr. Jay Mr. Adams Mr. Laurens Mr. Carmichael Mr. Dana Mr. Dumas £2500 at 4s. 6d. 2500 • 2500 1500 * , 1000 1000 ■• , 200 Louis d'ors. ■ ^6000 ",tll.|o ii,in.i§ »i,ni.|o G,666.«g 4,444.^ 4,444.^ 920. 57,308.fo Private Secretary to Dr. Franklin. Private Secretary to Mr. Adams." ' *' ' '" By the law of May 1810, the salaries of ministers were fixed at $ 9000, and of charges, at g 4,500, exclusive of one year's salary in the shape of outfit. We are indebted to the kindness of a gentleman, formerly occupying a public station at a foreign court, for a copy of the personal instructions, given by the Department of State, i« J>iPI.OMATIC CORPS. -| I li |!t ' ■• 1 i -. tp^i which we propose to insert here at length, for the purpose of filling up, by means of these private details, the outline of the diplomatic arrangement, we have attempted to present. *' Department of State, Washington, \S^ — . ** Sir, — With this letter you will receive the follomng papers, documents and books, which will be found necessary or useful to you in the discharsre of the mission, to which you have been ap- pointed. " 1. A commission as Envoy Extraordinary and Minister Pleni- potentiary. " 2. A letter of Credence to the King. " 3. A full power for negotiating a treaty of Commerce ; to be used in case such a negotiation should be proposed. " 4. A Cypher, to be used as occasion may require, in your cor- respondence with this Department, or with any of the other Minis- ters of the United States in Europe. *' 5. An engraved design of the Uniform worn by the Ministers of the United States, at ibreign courts, on occasions when full dress is required. " 6. A letter of Credit upon the bankers of the United States at London, authorizing them to pay your draughts upon them for your salary, and the contingent expenses of the Legation. You will be careful, in availing yourself of this, not to exceed, in the whole amount drawn, the sum to which you may be entitled in account with the United States at the lime of the draught. ' ' • "" " 7. A set of the Laws of the United States, Bioren's edition, with pamphlet copies of the laws of the subsequent sessions to this time. " 8. A volume containing the Commercial Regulations of the fo- reign countries, with which the United Slates have commercial in- tercourse : collected, digested, and published by order of Congress. Supplementary information upon the same subject beinpf very de- sirable, you are requested to collect and communicate any such, as it may be in your power to obtain. " 9. A set of Niles's Register. , ^ ' '.' i?:l " 10. A set of Wait's State Papers. ' •- *' All these books are for the use of the Legation ; and at the termination of your mission are to remain with the Charge d'Af- iairee, in case one should be left, or pass to your successor. : j ; DIPLOMATIC COSPS. 15 purpose of outline of present. N, 18—. Lng papers, >r useful to e been ap- ister Pleni- rce ; to be ' •-/ ' [1 your cor- ber Minis- 3 Ministers 1 full dress d States at in for your You will the whole account of the fo- ercial in- Congress. very de- such, as % "11. A Passport for yourself and your family. " ^ *' 12. A sample of despatch paper, and a set of lines. ^' Your allowance, as limited by law, is nine thousand dollars a year for all personal and other expenses, with an outiit, equal to one yeur^s salary, and a quarter's salary for your return. By a ^neral rule the salary commences from the time of the Minister's leaving home, to proceed upon his mission, and ceases on his re- ceiving notice or permission to return : after which the additional quarter's allowance takes place. The cost of gazettes and pam- phlets transmitted to this office, of postage, stationary, necessary and customary presents to the menial attendants at court, and of the public functionaries, at your presentation, and on other estab- lished occasions (usually the Christmas, or New Year's days), are not considered, as included under the denomination of personal and other expenses, and will form, as contingencies of the legation, a separate charge in your accounts. But no contingent expenses are to be incurred without necessity, or in compliance with the established usages, and no charge of any other description will be admitted, unless warranted by express dirtictions from this ilepart- ment. Exact vouchers in all cases of expenditures will be neces- sary for the settlement of your accounts : and as some of these in- cidental charges are of a nature, scarcely admitting of any other sort of voucher for every item, a separate account of them should be kept and certified by the secretary of the logation. " These particulars are stated thus minutely, that you may be relieved from all doubts on the subject of your accounts, which, you will keep in remembrance, are to be regularly transmitted by duplicates for adjustment at the Treasury, at the close of every quarter, ending with March, June, September and December. " Among the most important general duties of a Minister of the United States in foreign countries, is that of transmitting to his go- vernment accurate information of the policy and views of the go- vernment, to which he is accredited, and of the character and vi- cissitudes of its important relations with other European powers. To acquire this information, and particularly to discriminate be- tween that which is authentic, and that which is spurious, requires steady and impartial observation, a free though cautious corre- spondence with the other Ministers of the United States abroad, and friendly, social relations with the members of the diplomatic body at the same court. u DIPLOMATIC CORPS. " In your correspondence with this Department, besides the current general and particular politics of the country, where you are to reside, you will be mindful, so far as you may find it conve- nient, to collect and transmit information of every kind, relating to the government, finances, commerce, arts, sciences and condition of the nation, which is not already known, and may be made use- .ful to our own country. Books of travels, containing statistical, or other information of political importance, historical works, not be- fore in circulation, authentic maps, published by authority of the state, or distinguished by extraordinary reputation, and publica- tions of new and useful discoveries — will always be acceptable acquisitions to this Department. The expense of procuring and transmitting them will form, in your account, a separate charge to the Department. But no such charge of any considerable amount is to be incurred in any one account, without a previous express direction for it from this Department. " It is the practice of the European governments, in the draw- ing up of their treaties with each other, to vary the order of nam- ing the parties, and of the signatures of the plenipotentiaries in the counterparts of the same treaty, so that each party is first named, and its plenipotentiary signs first, in the copy possessed and pub- lished by itself: and in treaties, drawn up between parties, using different languages, and executed in both, each party is first named, and its plenipotentiory signs first in the copy, executed in its own language. This practice, having been accidentally omitted, on one or two occasions, to be observed by the United States, the omission was followed by indications of a disposition in certain Eu- ropean governments to question its application to them. It be- came, therefore, proper to insist upon it, as was accordingly done with effect. As it is understood to involve a principle, you will consider it as a standing instruction to adhere to this alternative, in the conclusion of any treaty, convention, or other document, to be jointly signed by you with the plenipotentiary of the other power. " In the practice of our government, there is no immediate con- nexion or dependence between the persons, holding diplomatic and consular appointments in the same country ; but by the usage of all the commercial nations of Europe, such a subordination is con- eidcred as of course. In the transaction of their official duties, the Consuls are often in necessary correspondence with their Minis- « P m m i d( 1 th -*> in DIPLOMATIC CORPS. If ters, and are always supposed to be under their directions. You will accordingly maintain such correspondence with the consuls of the United States in , as you shall think conducive to the pubiic interest; and in case of any vacancy in their offices, which may require a temporary appointment of a person to perform the duties of the Consulate, you are authorized, with the consent of the government, to which you are siccredited, to make it, giving immediate notice of it to this Department. " Among the ordinary functions of an American Minister in Eu- rope, is that of giving passports to citizens of the United States, who apply for them. They sometimes receive applications for such passports from the subjects of other countries; but as these are not regularly valid, they should be granted only under special circumstances, as may sometimes occur in the case of foreigners, coming to the United States. All passports should be gratuitously given, and may on some occasions be refused even to American citizens. Protections to seamen are not included under the deno- mination of passports, nor are they ever granted by public minis- ters. " A custom prevails among the European sovereigns, upon the conclusion of treaties, of bestowing ])rcsents of jewelry, or other articles of pecuniary value, upon tlie Minister of the power with which they were negotiated : the same usage is repeated upon the Minister's taking leave, at the termination of his mission. The acceptance of such presents, by Ministers of the United States, is expressly prohibited by the Constitution, and even if it were not, it can scarcely be consistent with the delicacy of intercourse with foreign powers, for the Ministers of the United States to r eive from foreign princes, such favours, as the Ministers of thos prin- ces to the United States never can receive from this government in return. The usage, exceptionable in itself, could be tolerated only by its being reciprocal. It is expected by the President, that every offer of such present, which may in future be made to any public minister or other officer of this government abroad, will be respectfully, but decisively declined. This having been alread}' a standing instruction to all the Ministers of the United States abroad for several years, the rule is probably known, so that no offer of such present will be made ; but should there bo reason to expect it, to avoid the apparent harshness of declining an intended Awour, VOL. I. 3 w DIPLOMATIC CORPS. informal notice, that it cannot be accepted, given in the proper quarter, may anticipate the necessity of refusal. " You are requested to provide yourself with a sufficient supply of the despatch paper, in size and quality corresponding with the sample, herewith sent, to be exclusively used in your correspond- ence with this Department. It has been lound highly convenient and useful to have the original despatches from our Ministers abroad bound up in volumes. For this purpose, with a view to uniformity, the despatches should be regularly numbered, and, with the copies made at the Legation of all papers transmitted with them, should be written on paper of the same dimensions, 13^ inches long, 81 broad, with the edges uncut, and a margin of at least 1^ inch, round all its borders, for stitching and cutting off the edges ^without injury to the text. The lines transmitted, mark the margin within which the manuscript should be confined ; of which these instructions, also, exhibit an example. " Minute as these particulars appear, they are found to be very essential to the good order and convenience of business in the De- partment.* " I have the honour to be, with great respect, sir, your humble and obedient servant." wn^ * During the first term of General Washington's administration, presents of form were given to foreign Ministers ; — it consisted of a chain and medal of gold. TJie die for tlio purpose was made in Paris, by the direction of Mr. Jefferson, ns will be seen by the following letter. " New-York, April 30, 1790. " It has become necessary to determine on a present, proper to be given to diplomatic characters on their taking leave of us, and it is concluded that a medal and chain of gold will be the most convenient. 1 am, therefore, to ask the favour of you to order the dies to be en- graved with all the despatch practicable. The medal must be of 30 lines diameter, with a loop on tlie edge to receive the chain. On one side must be the arms of the United States, of which I send you a written description, and several impressions in wax, to render that more intelligible; round them as a legend, must be "The United States of America" — the device of the other side we do not decide on. One suggestion has been a Columbia (a fine fesriale figure), de- livering the emblems of peace and commerce t^ a Afdrcnry, with the legend " Peace and Commerce" circumscribed, and the date of our i! ill' i!: CEREMONIAL OF RECEPTION. 19 he proper ent supply f with the orrespond- :onvenient Ministers 1 a view to ercd, nnd, rnnsmitted imensions, margin of cutting off tted, mark nfined ; of to be very in the De- ur humble inistration, ;i.sted of a in Paris, Allowing 1790. per to be and it is onvenient. to be en- bc of 30 On one nd you a nder that le United ot decide gure), de- with the te of our CEREMONIAL OF RECEPTION. In receiving the first Foreign Minister in 1778, various dif- ficulties presented themselves to the consideration of Con- gress. The etiquette practised in the courts of Europe was probably known, or at least, could easily have been ascer- tained. But a foreign ceremonial of that description could in no way be made to apply to the actual condition of the American Congress. Neither regal with a monarch, nor a confederated republic with an executive to represent it, the single House of Delegates constituted the whole government. The foreign minister was addressed to the Congress, and by that body alone could be accredited. This part of the affair was plain and easily understood, but the details of the re- ception were seemingly difficult to arrange. Congress itself was the sovereign, independent body, to whom the minister was to be presented — it was the nation : but every member of it was a delegate from a sovereign and independent state, and possessing equal dignity and authority with every other member. Still it could only be approached as a body. Neither was Congress furnished with officers to perform the minor parts of the ceremonial of introduction. Their own members, who composed the nation, and each of whom re- presented a sort of nation, were obliged to be the actors or assistants in the scene. M. Gerard, the first foreign envoy received by Congress, arrived in this country in the summer of 1778, a Minister Plenipotentiary. The form of his presentation obviously caused some embarrassment. The subject was regularly referred, like any other matter, to a committee, (Richard Henry Lee, Samuel Adams, Gouverneur Morris) and the Republic, to wit, IV July MDCCLXXVI., subscribed as an exergtie. But having little confidence in our own ideas in an art not familiar here, they are only suggested to you, to be altered, or altogether post- poned to such better device as you may approve on consulting with those, who are in the habit and study of medals." ; 30 CEREMONIAL OF RECEPTION. report of this committee was discussed five days by Con- gress, though the debates have not been preserved. The business was Anally arranged with uncommon care and mi- nuteness, — not perhaps in very good taste, nor with much simplicity ; but the reader will be satisfied by the extracts we are about to quote from the order of the ceremonial, that Congress had not neglected the rights or pretensions of either party. ^' Resolved, that the ceremonial for a Minister Plenipotentiary or Envoy shall be as follows. When a Minister Plenipotentiary or Envoy, shall arrive within any of the United States, he shall re- ceive, at all places, where there are guards, sentries, and the like, such military honours as are paid to a general oilicer of the second rank in the armies of the United States. ^Vhen he shall arrive at the place in which Congress shall be, he shall wait upon the President, and deliver his credentials, or a copy thereof. Two members of Congress shall then be deputed to wait upon him, when and where he shall receive audience of the Congress. At the time he is to receive his audience, the two members shall again wait upon him in a coach belonging to the States, and the person first named of the two, shall return with the Alinister Pleni- potentiary or envoy in the coach, giving the Minister the right hand, and placing himself on the left with the other member on the first seat. When the Minister Plenipotentiary or Envoy is arrived at the door of the Congress Hall, he shall be introduced to his chair by the two members, who shall stand at his left hand.'' *'Whea the Minister is introduced to his chair by the two mem- bers, he shall sit down. His Secretary shall then deliver to the President the letter of his Sovereign, which shall be read and translated by the Secretary of Congress. Then the Minister shall be announced, at which time the President, the House, and the Minister shall rise together. The Minister shall then bow to the President and the House, and they to him. The Minister and the President shall then bow to each other, and be seated, after which the House shall sit down. The Minister shall deliver his speech standing. The President and the House shall sit while the Minister is delivering his speech. The House shall rise and the President shall deliver the answer standing. The Minister shall stand while the President delivers his answer. Having spoken, and being answered, the Minister and President shall bow to each other, at which time the House shall bow, and then the Minister shall be C( HI hil ofj thl shI bel stj All m( tril uJ be CEREMOMAL OF RECEPTION. 81 conducted home ia the manner in which he was brought to the House/' '^ Those, who shall wait upon the Minister, shall inform him, that if, in any audience, he shall choose to speak on matters of business, it will be necessary, previously, to deliver in writing to the President what he intends to say at the audience, and if he shall not incline thereto, it will, from the constitution of Congress, be impracticable for him to receive an immediate answer. The style of address to Congress shall be, 'Gentlemen of the Congress.' All speeches, or communications, in writing, may, if the public Ministers choose it, be in the language of their respective coun- tries. And all replies or answers shall be in the language of the United States. After the audience, the members of Congress shall be first visited by the Minister Plenipotentiary or Envoy." No one can much applaud this arrangement; and in 1783 the ceremonial was wisely abolished, and a simple form sub- stituted. Even in a government like our own., some slight degree of etiquette is occasionally necessary. It is proper and extremely convenient on such occasions, that every one should know what he has to do, for whatever is done by public functionaries before the public, should be done de- cently, and with dignity. The mode, just described, of re- ceiving foreign ministers in the bosom of the assembly, was adopted by the National Convention in France ; but they threw into the ceremony all the enthusiasm and exalta- tion that belonged to the times and the people, and, by their vivacity of character and well known susceptibility of excite- ment, contributed some portion of relief and animation to a scene, in itself, possessing neither grace nor dignity. Under the present constitution, the form of receiving and accredit- ing public ministers, is exceedingly simple, 'i'he individual is presented by the Secretary of State to the President in his House, (without any other ceremony than takes place on the occasion of a common visit) when his credentials are examined. The constitution directs the President to " re- ceive ambassadors and other public ministers," but this government does not make the distinction, which, we be- lieve, is maintained by the European states in relation to agents of the rank of Charge d'Aflfaires and under, who are accredited only by the Secretary, or Minister of Foreign Relations ; whereas all public officers, above the rank of Charge, are accredited by the sovereign in person. I ( 23 ) CHAPTER II. TREATIES OF AMITY AND COMMERCE, AND OF AL- LIANCE OF 1778, WITH FRANCE. Confederation little hopes, or means, of obtaining foreign assistance — Deane sent to France in '7G to obtain supplies — Remarkable letter of Vcrgennes — Franklin, Deane and Jefferson elected Commission' ers in '76 — Jefferson excused from going — Private aid early from France — Lee chosen in his place — Aot officially received — farming situation — Private account of affairs at French Court — France dis- posed to withdraw all succour — Commissioners had secret Corres- pondence in London — JVews of Burgoyne'^s S:irrender — Treaties signed — Account of Negotiation — Difficulty re.yifcling Molasses — Commissioners presented at Court — Treaty of alUuncc dangerous — Great attention to Franklin — Anc 'dotes of him — Gerard appointed Minister to America — Sails in d''Estaing''s Flag Ship — Presented to Congress — Ceremonial — Franklin elected to Versailles — Franklin complains of number of Ministers — Complimentary Letter to Lu- zerne — Misunderstanding betzeeen Adams and Vergennes — Frank- lin'^s request to return— Medal to L izerne — Returns to America — Succeeded by Jefferson— -De la Luzerne succeeds Gerard — Jefferson buys Deanc'^s papers. The means of intercourse with foreign nations, accessi- ble to the confederation, were exceedingly limited ; of the States in Europe, most able to aflbrd assistance, little was known, except as enemies, and, while under the royal gov- ernment, the provinces, entering with spirit into various wars against France, had powerfully and very cheerfully contributed to the conquest of the French possessions in North America. Indeed, one of the principal motives of the Convention at Albany, held in 1754, and consisting of com- missioners from eight of the colonies, was to agree on a scheme of mutual protection against the encroachments of TREATIES or '78 WITH FRANCE. the French and Indians, at that time always allies. The trade of the country, also, being constantly subject to the severities and restrictions of the colonial system, was confin- ed, at the period of the Revolution, to Great Britain, the West Indies, Africa and Europe, south of Cape Finisterre. It is not, therefore, to be expected that the Congress could look abroad with much confidence, or hope of relief. The principal European states possessed colonies, and, on that account, America laboured under the peculiar disadvantage of seeking aid and encouragement from monarchies, whose poli- cy would always lie in resisting the principles, the confedera- tion asserted. Kcvolutions were, at that time, not so com- mon as they have since become. The movement of the Americans was, with the exception of two slight aflairs of the Pretender in Great Britain, the only instance of rebel- lion, that had occurred among civilized nations in that cen- tury. The governments of Europe, moreover, wore, at this crisis, the aspect of strength and prosperity ; the throne was never, in appearance, more firmly established, or colonies of all descriptions in more complete subjection. It is not likely that the American provinces, in the outset, expected assistance from abroad. The Revolution war, though events had been setting with a silent, but most un- erring course, to that extremity since 17GG, was little antici- pated in 1774, the year of the first meeting of the Delegates in Philadelphia. But the war finally broke out in a manner most unexpected, and spread with a rapidity equally aston- ishing. It is the first illustration, we have in history, of the effects of strong excitement on a people, well educated and perfectly free. No one was then aware, till the moment of action, of the deep and universal sympathy, awakened throughout America, by the operation of a free press, and a free spirit of enquiry. The great mass of the people were certainly deceived as to the state of the public mind ; they knew what their neighbours thought, but they probably had little conception, that men, living hundreds of miles apart from them, on the opposite frontiers of the continent, thought as they did, and were quite as prepared to act. There were 14 TREATIES OF '78 WITH FRANCK. a few persons, endowed with a prophetic spirit, who doubt- less foresaw the separation ; but whether the Delegates themselves to the fu-st Congress niiticipntcd that event, whether they considered the Convention as on act of self- defence only, whether the Petition presented to the King in September '75, even after the cuiumoncement of hostilities, was done, under the expectation that harmony would be restored, it is most certain, they took no steps to form foreign alliances before the Declaration of Independence. We do not mean to bo understood as saying that America had not received, as early as I77G, much foreign assistance. On the contrary, it was obtained, both from individuals in France, and from the French government.* Private mer- chants, in several of the scajioits, scut, secretly, cargoes of military stores to this country, under the expectation of get- ting an extravagant profit ; precisely as we have seen, in our times, adventures of similar description despatched to the South American states. And to this period, we may trace the claim, since become exceedingly intricate, of Caron Beaumarchais. Silas Deane, of Connecticut was, also, sent privately to France, where he arrived in .Tune 177G, to ob- tain supplies for Congress, and to ascertain the dispositions of the government. The 17th of September of the same year, Deane wrote to Robert Morris from Bourdeaux. " I shall send you in October clothing for 20,000 men, 30,000 muskets, 100 tons gunpowder, 200 brass cannon, 24 mor- tars, with shot, shell, &c. in proportion." In November, being directed by Congress to communicate the act of inde- pendence to France, he obtained credit to the amount of £ 500,000, ostensibly from a private company. But we do not find in his journal or correspondence the least trace of a direct intercourse with France, though no doubt can now remain of the part the French secretly took in the affairs of the Americans, even before the Declaration of their Inde- pendence. A letter of M. de Vergennes of May 2, 1776, * TIic Coinmittec of Congress liail a correspondence with a Mr. Dumns at Utrcclit in April 1776 ; — tlicy prcparetl instructions for liim as early as December 1775. 111! TREATIES or '78 WITH FRAWCC. addressed to the king, and preserved in the Archives du Corps Legislatif, affords all the proof necessary of the doings and dispositions of the French court. Never having seen a translation of it, we shall quote the whole : — " Sir, 1 have the honour of laying at the feet of your Majesty the writing, authorizing mc to furnish a million of livres for the scr> vice of the English colonies. I add ulso, the plan of an answer I propose to make to the Sieur BeaumarchHis. 1 solicit your appro- batlon to the two propositions. The answer to M. de Beaumar- chais will not be written in my hand, nor even that of either th« clerks or secretaries of my office. I shall employ for that purpose my son, whose hand-writing cannot be known. He is only /ilV^en years old, but I can answer in the most positive manner i> r his discretion. As it is important that this )peration should not b« suspected, or at least imputed to the government, I entreat your Majesty to nllow mc to direct the return of the Sieur Montaudoio to Paris. The apparent pretext for that proceeding will be, to obtain from him an account of his corres>pondcnce with the Ame> ricans, though, in reality, it will be fur the purpose of employing him to transmit to tliom such funds as your Majesty chooses to appropriate to their benefit, directing him, at the same time, to take all necessary precaution, as it', indeed, the Sieur Montaudoin made the advance on their own account. On this head, I take the liberty of requesting the orders of your Majesty. Having obtained them, I shall write to the Marquis de Grimaldi,* inform him in detail of our proceedings, and request his cooperation, to the same extent."! The Declaration of Independence rendered a return to the connexion with the mother country utterly impracticable. Till that period, the confederation had forborne to augment the diiTiculties of a restoration of peace, by entering into en- gagements with other nations, even if governments could be found, who would assume the responsibility of becoming their allies while in a colonial state. Still, just before this time, America had received no certain intelligence of the inten- * Minister and Secretary of State of Despatches in Spain, t Flassan, vol. vii. VOL. I. 26 TREATIES or '78 WITH FRANCE. il tions of France, for we find in the month of May 1776, that the assembling a large fleet by the French in the West In- dies, excited alarm, and measures were immediately adopted by Congress, in order to ascertain whether it was their de- sign to act against the United States. But in the autumn of this year the disposition of some of the European powers, particularly France, having been fully disclosed, the atten- tion of Congress was first turned to the consideration of trea- ties to be proposed to foreign states. And in September, a plan of one was agreed on.* The terms do not differ ma- terially from the provisions of the treaty afterwards made. On the 26th of September, Benjamin Franklin of Penn- sylvania, Silas Deane of Connecticut, and Thomas Jefferson of Virginia, were elected, in a ballot f Congress, Commis- sioners to the Court of France. Mr. Jefferson, having been excused from going, on account of the state of his family, Arthur Lee of the same state was appointed on a subsequent day. They were furnished with a letter of credence, which, as it was the first given by an American Congress, we shall insert at length. " The Delegates of the United States of New Hampshire, Mas- sachusetts Bay, Rhode Island, Connecticut, New-York, New Jer- sey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to all who shall see these presents, send Greeting ; — Whereas a trade, upon equal terms, hetween the subjects of his most Christian Majesty, the King of France and the people of these States, will be beneficial to both nations; — Know ye, therefore, that we, confiding in the prudence and integrity of Benjamin Franklin, one of the Delegates in Congress, from the State of Pennsylvania, and President of the Convention of the said State, &c., Silas Deane, now in France, late a Delegate from the State of Connecticut ; and Arthur Lee, barrister at law, have ap- pointed and deputed, and by these presents do appoint and depute them, the said Benjamin Franklin, Silas Deane, and Arthur Lee, our Commissioners, giving and granting to them, the said Franklin, Deane, and Lee, or any two of them, and in case of the death, ab- sence, or disability of any two, or any one of them, full power to * Foreign Relations. (Secret Journal,) vol. ii. p. 27. ■i^>' TREATIES OP '78 WITH FRANCE. 27 communicate, treaf, agree and conclude with his most Christian Majesty, the King of France, or with such person or persons, as shall by him be for that purpose authorized, of and upon a true and sincere friendship, and a firm, inviolable and universal peace for the defence, protection, and safety of the navigation and mu- tual commerce of the subjects of his most Christian Majesty, and the people of the United States, and to do all other things, which maj' conduce to those desirable ends, and promising in good faith to ratify whatsoever our said Commissioners shall transact in the premises. Done in Congress, in Philadelphia, the thirtieth day of September, in the year of our Lord one thousand seven hundred and seventy-six." Mr. Lee and Mr. Deane, in Europe at the time of their appointment, were joined, in December, by Dr. Franklin. The first letter of the Commissioners is dated Jan. 17, 1777. " To the Committee for Foreign Affairs. " We joined each other at this place on the 22d of Decem- ber, and on the 28lh had an audience nf his Excellency the Count De Vergcnnes^ one of his most Christian Majesltfs principal Secretaries of State^ and Minister for foreign affairs. We laid before him our Com' mission^ with the articles of the proposed Treaty of Commerce. He assured us of the protection of his Courts and that due consideration should be given to what we offered. Soon after we presented a " memoire" on the present situation of our States, drawn up at the Minister's request, together with the articles of the general con- federation, and the demand for ships of war, agreeable to our in- structions. Copies of all these papers were given by us to the Count D'Aranda, his Catholic Majesty's Ambassador here, to be communicated to his court. " We are promised an answer from this Court as soon as they can know the determination of Spain, with which they mean to act in perfect unanimity. In the mean time, we are endeavouring to expedite several vessels, laden with artillery, arms, ammunition and clothing, which we hope will reach you in time for the cam- paign, though unfortuna'cly one vessel, which Mr. Deane had sent so laden, has put back, after having been three weeks at sea; — she is, however, now sailed again. " The ports of France, Spain and Florence (that is, Leghorn in the Mediterranean) are open to the American cruisers upon the usual forms of neutrality." TREATIES OP '78 WITH FRANCE. ■■\' \ Dr. Franklin was received at Paris with uncommon at- tention ; known already as a philosopher, the cause he re- presented was undoubtedly popular with the French. In- deed, the subject of liberty itself was, already, popular. It might have been only a fashion, as so many other things have been in France — it might have arisen from the meta- physical, or rather philosophical discussions, in which the French were then so much engaged, without at all appre- hending the practical effects of them. Or, perhaps, we may, with most truth, call the cause of the colonies popular, be- cause it was one likely to do vast mischief to England. The novelty of the undertaking itself, produced an enthusiasm in France ; a war was commenced on a new continent ; — the iBcene of action and of interest was transferred from the old world. This had, already, happened in the former French wars, when Quebec and their other possessions fell. But, then, the European had only left his customary battle-grounds to meet on a new continent with the same armies, the same animosity, and the same ambition. Europe was a party to those wars, — to this, a spectator. At any rate, America was viewed with that deep interest and sympathy, with which the weak are regarded in all contests, and those, who were not inspired with the holy spirit of emancipation, doubtless wished well to a cause, that was fought at such fearful odds. But the government manifested an evident reluctance to form an open alliance at this time ; it naturally and prudent- ly sought for delay. " The politics of this court," remarks A. Lee, January 3, '77, " are in a kind of trembling hesita- tion. It is in consequence of this that the promises, which were made me by the French agent in London (and which I stated to you by Mr. Story and others), have not been en- tirely fulfilled."* The Commissioners were not publicly re- h M * The allusion in this letter is thus explained. "Paris, Feb. 8, 1778. I was present at Mr. Lee's chambers at the temple in liondon, sometime in the spring of '70, when M. Caron de fieaumarchais made offers to Mr. Lee to send supplies of money and stores, through the islands, to the Americans, to the amount of 200,000 livres d'or, and, he said, he was authorized to make the proposals by the Court of France. B. C. D. Lauragais." TREATIES OF *78 WITH FRANCE. 2d ceived ; for the fate and condition of the Americans were in an unconfirmed state ; — and it mi ht well be doubted, whether they could long resist the mother country, of whose power France herself, bore the deep marks of a recent and melan- choly experience. But assistance continued to be secretly furnished ; — 2,000,000 of livres were put into the hands of Deane and Franklin by a wealthy individual (undoubtedly by the direction of the government), in the summer of '77, without interest or security ; — privateers were allowed to equip, and bring their prizes into French ports ; — commis- sions were issued by the American envoys ; and the cause of the Revolution still continued exceedingly popular with the people. Franklin, in one of his letters, in May '77, has th.ie remarks : " All Europe is on our side of the question, as far as applause and good wishes can carry them. Those, who live under arbitrary power, do nevertheless approve of liberty, and wish for it; they almost despair of recovering it in Europe ; they read the transla- tions of our separate colony institutions with rapture, and there are such numbers every where, who talk of removing to America with their families and fortunes as soon as peace and our independence shall be established, that it is gfjnerally believed, we shall have a prodigious addition of strength, wealth and arts from the emigra- tions of Europe, and it is thought that to lessen or prevent such emigrations, ♦Ve tyrannies established there must relax and allow^ more liberty to their people. Hence it is a common observation here, that our cause is the cause of all mankind, and that we are fighting for their liberty in defending our own "* But he could obtain no recognition of v.he independence, nor public declaration of assistance from the French court. Franklin, who knew the world, was obliged, for the moment, * Extract of a letter from Silas Deane to the Congress. " Dec. 3, *7G. The Queen is fond of parade, and I believo, wishes for war, and is our friend. She loves riding on horseback. Could you send me a line Narragansiit horse or two ? The money would be well laid out. Kittenhousc's orrery, or Arnold's collection of insects — a phaeton of American make, and a pair of bay horses — a few barrels of apples^ walnuts, cranberries, butternuts, &c. would be great curiosities." so TREATIES OP '78 WITH FRANCE. to console himself with the barren but polite phrase of the French Minister, that while he was in Paris, he should have " toute la surete et tous les agremens que nous y faisons cprouver aux etrangers." At one time, M. de Vergennes gave the American Commissioners hopes, they should be re- ceived as Ministers Plenipotentiary, though he exacted from them, as a preliminary step, that an authentic copy of the Declaration of Independence should be procured, which they had omitted to bring. Dr. Franklin had now been at the court more than six months ; he was, as he said himself, *' treated with great civility and respect by all orders of peo- ple, and it afforded him great satisfaction to find that he was of some use to his country." A French writer of that pe- riod, speaking of him, says, he was an " old man of a superb appearance, of a simple air and great affability, full of cour- age and confidence in his fellow-citizens and in the fu- ture."* In one of the earliest letters of the Commissioners, we have a minute account of the situation of affairs at the court of Versailles. , , , " Paris, 12 March 1777. • " To the Secret Committee. » » • ♦' It is now more than four months, since Mr. Franklin's de- parture from Phihulelphia, and not a line from thence, written since that time, has hitherto reached either of your Commissioners * We have met, in La Harpe's Correspondence, with an anecdote, relating to America, that does not appear to have been much circulat- ed. It took place at the time of the celebrated last visit of Voltaire to Paris. It does not belong to the precise year, of which we are now treating, but our ajjology for extracting it, is its application to the sub- ject. " Nothing appears more worthy of being mentioned than Vol- taire's interview with Franklin. M. de Voltaire spoke to him in Eng- lish ; his niece, Mme. Denis, who was present with some other friends, observed, they should be glad to hear what was said, and begged him to speak French. * I beg your pardon,' replied Voltaire, * I have for a moment yielded to the vanity of speaking the same language as Dr. Franklin.' Franklin presented his grandson to the philosopher, and craved his blessing for him. Voltaire extended his arms over him, and said to him, ' My child, God and Liberty I Recollect those two words.' " TREATIES OF '78 WITH FRANCE. SI in Europe. We have had no information of what passes in Ameri- ca, but through England, and the advices are for the most part only as the Ministry choose to publish. Our total ignorance of the truth or falsehood of facts, when questions are asked of us con- cerning them, makes us appear small in the eyes of the people here, and is prejudicial to our ncgotialions. " In ours of 6th February, of which a copy is enclosed, we ac- quainted you, that we were about purchasing some cutters, to be employed as packet boats. We have succeeded in getting one from Dover, in which we purpose to send our prrsent despatches. Mr. Hodge, who went to Dunkirk and Flushing, where he thought another might be easily found, has not yet acquainted us with his success. We promised, that when we had a conveyance, which by its swiftness is more likely to carry safely our letters, we would be more explicit in accounts of our proceedings here, which pro- mise, we shall now fulfil, as follows. " In our tir.'«t conversation with the Minister, after the arrival of Mr. Franklin, it was evident that this Court, while it treated us privately with all civility, was ciiutious of giving umbrage to Eng- land, and was, therefore, desirous of avoiding an open reception and acknowledgment of us, or entering into any formal ncgotia'ion with us, as Ministers from the Congres?. To make us easy, how- ever, we were told that the ports of France were open to our ships as friends, that our people might freely purchase and transport, as merchandise, ivhatever our States had occasion for, vending at the same time our own commodities; that in doing this, we should ex- perience all the facilities, that a government, disposed to favour us, could, consistent with treaties, nlTord to the enemies of a friend. But though it wan, at that time, no seciet, that two hundred tield- pieces of brass, and thirty thousand fusils, with other munitions of war in great abundance, had been taken out of the king's maga- zines for the purpose of exportation to America, the Minister, in our presence, affected to know nothing of that operation, and claimed no merit to his Court on that account. But he intimated to us, that it would be well taken, if we communicated with no other person about the Court concerning our affiiirs, but himself, who would be ready, at all convenient times, to confer with us. " We soon after presented several memorials, representing the state of the colonies, — the necessity of some naval aid, — and the utility to France, that must result from our success in establishing ; . '•iTf $t TREATIES OF '78 WITH FRANCE. the independence of America, with the freedom of its commerce. Id answer, we received a positive rcfus:»' TREATIES or *78 WITH FRANCE. 37 to enter into treaties of commerce and alliance %vith, the « United States of America ;" and, on the 28th of the month, they were admitted to a formal conference with M. de Ver- gennes at Paris. These two treaties were signed on the 6th of February 1778,* by Benjamin Franklin, Silas Deane, and Arthur Lee for America, and Conrad Alexander Gerard for France. We possess no details of the negotiation ; but we shall recite in this place a letter, to Congress, of two of the Commissioners, dated February 8, 1778, at Passy. *' We have now the great satisfaction of acquiiinting you and the Congress, that the treaties with France arc, at length, com- pleted and signed. Tiie first is a treaty of Amity and Commerce, much on the plan of that projected in Congress; the other, a trea- ty of Alliance, in which it is stipulated that, in case England de- clares war against France, or occasions a war by attempts to hin- der her commerce with us, we should then make common cause, and join our forces and councils, &c. &c. The great aim of this treaty is declared to be, " to establish the liberty, sovereignty and independency, absolute and unlimited, of the United States, as well in matters of government as commerce," — and this is guarantied to us by France, together with all the countries we possess, or shall possess, at the conclusion of the war. In return for which the States guaranty to France all its possessions in America. We do not now add more particulars, as you will soon have the whole by a safer conveyance, a frigate being appointed to carry our de- spatches. We only observe to you, and with pleasure, that we have found, throughout this business, the greatest cordiality in tbisCoUrt, and that no advantage has been taken, or attempted to be taken, of our present difliculties, to obtain hard terms from us ; but such has been the King^s magnanimity and goodness, that be has proposed none, which we might not readily have agreed to in a state of full * This proceeding was soon known in England. Gibbon writes (London, Feb. 23, 1778) to Mr. Ilolroyd, afterwards Lord Sneffield, " It is positively asserted, both in [)rivate and in Parliament, and not contradicted by Ministers, that on the Jijlh of this month a treaty of commei'ce (which naturally leads to war) tvas signed at Paris with the independent States of America. Yet there still remains a hope, that England may obtain the preference. The two greatest countries in Europe are fairly running a race for the favour of America." vj Kl THEATIES or '78 WITH FRANCE. prosperity and entahlished power. The principle laid down as the bails of the treaty being', as dechired in the preamble, " the most perfect equality and reciprocity'' — the privileges in trade, iic. are mutual, and none are given to France, but what we are at liberty to grant to any other nation. On the whole, we have abundant reason to be satisfied with the good will of this Court and the na- tion in general, which we, therefore, hope will be cultivated by the Congress by every ntcans that may establish the union, and make it permanent, ii^pain being slow, there is a separate and se- cret clause by ivliich she is to be received into the alliance upon requisition ; and there is no doubt of the event. When we men- tion the good will of this nation to our Ciiu^c, wc may add that of all Europe, which, having been offended by the pride and inso- lence of Britain, wishes to see its power diminish ; and all, who have received injuries from her, are, by one of the articles, to be invited into an alliance. The prci>aralions for war are carried on with immense activity, — and it is very soon expected." These were the first treaties made by the United States, and as it respects the coiiimcrcial one, the model of most conventions, since concluded with the states on the continent of Europe. Wc abstain from making any general remarks on their stipulations, as the whole are extracted. But in the commercial treaty, though no reciprocity of duties was es- tablished, the barbarous droit dUiubaine was abolished as it regarded Americans,^ — contrabands, specifically enumerated, were confined to munitions of war ; a trade with an enemy's possessions was admitted, and the great neutral principlei ** Free ships, free goods," was recognised. The commerce of each party was put on the footing of the most favoured nations ; gentis amicissimae. Otlier remarks on this treaty will be found in the next chapter. The treaty of alliance, besides containing a guaranty of possession to a certain ex- tent, declared that arms should not be laid down till the in- dependence of America was secured.* Thus did France * TREATY OF AMITY AND COMMERCE. " The most Christian King, and the thirteen United States of North Amsrica, to wit : New-Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New- York, New-Jersey, Pennsylvauia, Delaware, Ma- mh TBCATieS OF '78 WITH rHANCC. 39 acquire the signal honour of having been the first power in the old world to recognise the independence of a youthful nation in the new.* «, ' : .>• -. . .^ ..i«. ryland, Virginia, North Carolina, Houth Carolina, and Oeorgin, willing to fix in nn oquitnbie and permanent manner, tlio rules which ought to be followed relative to the corroapondonce and coinmerco which the two porties desire to establish, between their respective countries, states, and subjects, his nioMt christian majesty and the said United States, have judged that the said end could not be better obtained than by taking, for the basis of their agreement, the most perfect equality and reciprocity, and by carefully avoiding all those burthen- sbme preferences, which are usually sources of debate, endmrrassment and discontent; by leaving also each party ut liberty to make, respect- ing commerce and navigation, those interior regulations which it shall find most convenient to itself; and by founding the advantage of com- merce solely upon reciprocal utility, and the just rules of free inter- course ; reserving withal to each party the liberty of admitting at its pleasure, other nations to a participation of the same advantages. It is in the spirit of this intention, and to fulfd these views, that his said Majesty, having named and appointed for his ])lenipotentiary, Conrad Alexander Gerard, royal syndic of the city of Strasbourg, Secretary of his Majesty's council of state; and the United States on their port, having fully empowered Benjamin Franklin, deputy from the State of Pennsylvania to the General Congress, and president of the conven- tion of said State ; Silas Deanc, late deputy from the State of Connec- ticut to the said Congress, and Arthur I^cc, counsellor at law; tho said respective plenipotentiaries, after exchanging their powers, and aAer mature deliberation, have concluded and agreed upon the fol- lowing articles : " Art. 1. There shall be a firu), inviolable and universal peace, and a true and sincere friendship between the most Christian King, his * VVc extract from a French writer of eminence, a brief account of M. de Vergennes : — " M. de Vergennes died with calmness ot the age of sixty-eight, in February '87. This minister did not pride himself on making a great figure in politics. lie possessed good sense, wis- dom and moderation, particularly what is called a good method, the fruit of fifty years' experience. To temporize was the principal re- source of this minister. He showed a want of address in seizing tho opportunity of the American Revolution to humiliate England. The American war exhausted the finances of the kingdom, and disturbed the ancient system of subordiaatiou." 7 40 TREATIES OF '78 WITH FRANCE. The treaty was not ratified precisely as concluded, the original 11th and 12th articles being stricken out. The 11th article conceded to the United States a perpetual pri- heirs and successors, and the United States of America ; and the sub- jects of the most Christian King, and of the said States; and between the countries, islands, cities and towns, situate under the jurisdiction of the most Christian King, and of the said United States, and the people and inhabitants of every degree, without exception of persons or places ; and the terms hereinafter mentioned shall be perpetual between the most Christian King, his heirs and successors, and the said United States. i ..'■■- i " Art. 2. The most Christian King, and the United States engage mutually not to grant any particular favour to other nations, in respect of commerce and navigation, which sliall not immediately become common to the other party, who shall enjoy the same favour, freely, if the concession was freely made, or on allowing the same compensa- tion, if the concession was conditional. " Art. 3. The subjects of the most Christian King shall pay in the ports, havens, roads, countries, islands, cities or towns, of the United States, or any of them, no other or greater duties, or imposts, of what nature soever they be, or by what name soever called, than those which the nations most favoured are, or shall be obliged to pay ; and they shall enjoy all the rights, liberties, privileges, immunities and exemptions in trade, navigation and commerce, whether in passing from one port in the said states to another, or in going to and from the same, from and to any part of the world, which the said nations do or shall enjoy. " Art. 4. The subjects, people and inhabitants of the said United States, and each of them, shall not pay in the ports, havens, roads, i«les, cities and places under the domination of his most Christian Majesty, in Europe, any other or greater duties or imposts, of what nature soever they may be, or by what name soever called, than those ■which the most favoured nations are or shall be obliged to pay ; and they shall enjoy all the rights, liberties, privileges, immunities and ex- emptions in trade, navigation and commerce, whether in passing from one port in the said dominions, in Europe, to another, or in going to and from the same, from and to any part of the world, which the said nations do or shall enjoy. " Art. 5. In the above exemption is particularly comprised the im- position of one hundred sols per ton, established in France on foreign ships ; unless when the ships of ihe United States shall load with the merchandise of Franco for another port of the same dominion, in TREATIES OF '78 WITH FRANCE. HI vilege of importing, from the French West India possessions, molasses without being subject to any sort of duty on expor- tation, but, as a compensation for this exemption, it was which case the said ships shall pay the duty above mentioned so long as other nations, the most favoured, shall be obliged lo pay it. But it is understood that the said United States or any of them, are at liberty, when they shall judj;e it proper, to establish a duty equivalent in the same case. " Art. G. The most Christian King shall endeavour, by all the means in his power, to protect and defend all vessels and the effects belonging to the subjects, people, or inhabitants of the said United States, or any of them, being in his ports, havens, or roads, or on the seas near to his countries, islands, cities, or towns, and to recover and restore to the right owners, their agents, or attorneys, all such vessels and effects, which shtiU be taken within bis jurisdiction ; and the ships of war of his most Christian Majesty, or any convoy sailing uu* der his author ry, shall, upon all occasions, take under their protection all vessels belonging to the subjects, people or inhabitants of the said United States, or any of rhem, and holding the same course, or going the same way, and shall defend such vessels as long as they hold the same course, or go the same way, against all attacks, force and vio- lence, in the same manner as they ought to protect and defend the vessels belonging to the subjects of the most Christian King. '' Art. 7. In like manner, the said United States, and their ships of war, sailing under their authority, shall protect and defend, conform- able to the tenor of the preceding article, all the vessels and effects belonging to the subjects of the most Christian King, and use alt their endeavours to rt-cover, and cause to be restored, the said vessels and effects that shall have been taken within the jurisdiction of the said United St.itcs, or any of them. " Art. 8. The most Christian King will employ his good offices and interposition with the king or emperor of Morocco or B'ez, the regen- cies of Algier, Tunis and Tripoli, or with any of them ; and also with every other prince, state or power, of the coast of Barbary, in Africa, and the subjects of the said king, emperor, states and powers, and each of them, in order to provide as fully and efficaciously as possible for the benefit, conveniency and safety of the said United States, and each of them, their subjects, people and iniiabitants, and their vessels and effects, against all violence, insult, attacks or depredations, on the part of the said princes and states of Barbary, or their subjects. " Art. J). The subjects, inhabitants, merchants, commanders of ships, masters and mariners, of the states, provinces and dominions of VOL. I. 6 ..-.»>• V- ■ 42 TREATIES OF '78 WITH FRANCE. ^J^^^-^' -\tl?-* " agreed, that no duties should ever be imposed on the ex- portation of any kind of merchandise, which the French may take from the present or future possessions of the United each party respectively, shall abstain and forbear to fish in all places possessed, or which shall be possessed, by the other party ; the most Christian King's subjects shall not fish in the havens, bays, creeks, roads, coasts or places, which the said United States hold, or shall hereafter hold, and in like manner, the subjects, people and inhabi* tahts of the said United States, shall not fish in the havens, bays, creeks, roads, coasts or places, which the most Christion King pos- sesses, or shall hereafter possess ; and if any ship or vessel shall be found fishing contrary to the tenor of this treaty, the said ship or veji- sel, with its lading, proof being made thereof, shall be confiscated ; it is however understood that the exclusion stipulated in the present ar- ticle, shall take place only so long and so far as the most Christian King, or the United States, shall not in this respect have granted an exemption to some other nation. "Art. 10. The United States, their citizens and inhabitants, shall never disturb the subjects of the most Christian King in the enjoy- ment and exercise of the right of fisliing on the banks of Newfound- land, nor in the indefinite and exclusive right which belongs to them on that part of the coast of that island which is designed by the treaty of Utrecht, nor in the rights relative to all and each of the isles which belong to his most Christian Majesty, the whole conformable to the true sense of the treaties of Utrecht and Paris. " Art. 11. The subjects and inhabitants of the said United States, or any one of them, shall not be reputed aubains in France, and con- sequently shall be exempted from the droit d^aubaine, or other similar duty, under what name soever. They may, by testament, donation or otherwise, dispose of their goods, moveable and immovable, in fa- vour of such persons as to them shall seem good, and their heirs, sub- jects of the said United States, residing whether in France or else- where, may succeed them ab intestat, without being obliged to obtain letters of naturalization, and without having the effect of this conces- sion contested or impeded under pretext of any rights or prer. ^atives of provinces, cities or private persons ; and the said heirs, whether such by particular title, or ah intestat, shall be exempt from all duty called droit de detraction, or other duty of the same kind, saving never- theless the local rights or duties as much, and as long as similar ones arc not established by the United States, or any of them. The sub- jects of the most Christian King shall enjoy on their part in all the flM iiii.; TREATIES OF '78 WITH FRANCE. 43 States for the use of the islands, that furnished molasses. In 1778, molasses was an article, much more important than at present, for consumption, but particularly for distillation, and dominions of tlie said states, an entire and [)erfect reciprocity relative to the stipulations contained in the present article, but it is at the same time agreed that its contents shall not affect the laws made, or that may be made hereafter in Franco against emigrations, which shall remain in all their force and vigour, and the United States on their part, or any of them, shall be at liberty to enact such laws, relative to that matter, as to thorn shall seem proper. " Art. 12. The merchant ships of either of the parties which shall be making into a port belonging to the enemy of the other ally, and concerning whose voyage, and the species of goods on board her, there shall be just grounds of suspicion, shall be obliged to exhibit, as well upon the high seas, as in the ports and havens, not only her pass- ports, but likewise certificates, expressly showing that her goods are not of the number of those which have been prohibited as contraband. " Art. 13. If by the exhibiting of the abovesaid certificates, the other party discover there are any of those sorts of goods which arc prohibited and declared contraband, and consigned for a port under the obedience of his enemies, it shall not be lawful to break up the hatches of such ship, or to open any chest, coffers, packs, casks or any other vessels found therein, or to remove the smallest parcels of her goods, whether such ship belongs to the subjects of France, or the in- habitants of the said United States, unless the lading be brought on shore in the presence of the officers of the court of admiralty, and an inventory thereof made ; but there shall be no allowance to sell, ex- change or alienate the same, in any manner, until after that due and lawful process shall have been had against such ])rohibitcd goods, and the court of admiralty shall, by a sentence pronounced, have confiscat- ed the same: saving always as well the ship itself as any otber goods found therein, which by this treaty are to be esteemed free, leither may they be detained on pretence of their being as it were infected by the prohibited goods, much less shall they be confiscated, as law- ful prize: but if not the whole cargo, but only part thereof shall con- sist of prohibited or controband goods, and the commander of the ship shall be ready and willing to deliver them to the captor, who has dis- covered them, in such case, the captor having received tliose goods, shall forthwith discharge the ship, and not hinder her by any means, freely to prosecute the voyage on which she was hound. Hut in cuse the contraband merchandises cannot be all received on board the vcs- "-^ 44 TREATIES or '78 WITH FRANCE. was one of the principal sources of trade of the commercial part of the nation. The remarkable changes in trade, in consumption, the introduction of sugar and the use of other sel of the captor, then the enptor may, notwithstanding the offer of delivering him the contraband goods, carry the vessel into the nearest port, agreeable to what is above directed. "Art. 14. On the contrary, it is agreed, that whatever shall be found to be laden by the subjects and iuhabitants of either party on any ship belonging to the enemies of the other, or to their subjects, the whole, although it be not of the sort of prohibited goods, may be confiscated in the same manner as if it belonged to the enemy, except such goods and merchandises as were put on board such ship before the declaration of war, or even after such declaration, if so be, it were done without knowledge of such declaration, so that the goods of the subjects and people of either party, whether they be of the nature of such as are prohibited or otherwise, which as is aforesaid, were put on board any ship belonging to nn enemy before the war or alYer the declaration of the same, without the knowledge of it, shall no ways be liable to confiscation, but shall well and truly be restored without de- lay to the proprietors demanding the same ; but so as that if the said merchandises be contraband, it shall not be any ways lawful to carry them afterwards to any ports belonging to the enemy. The two con- tracting parties agree, that the term of two months being passed after the declaration of war, their respective subjects, from whatever part of the world they come, shall not plead the ignorance mentioned in this article. ♦* Art. 15. And that more effectual care may be taken for the secu- rity of the subjects and inhabitants of both parties, that they sufier no injury by the men of war or privateers of the other party, all the com- manders of the ships of his most Christian Majesty, and of the said United States, and all their subjects and inhabitants, shall be forbid doing any injury or damage to the other side ; and if they act to the contrary, they shall be punished, and shall moreover be bound to make satisfaction for all matter of damage, and the interest thereof, by reparation, under the pain and obligation of their person and goods. " Art. 16. All ships and merchandises of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high seas, shall be brought into some port of either state, and shall be delivered to the custody of the officers of that port, in order to he restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof. i^ / > • ■ k TREATIES OF »78 WITH FRANCE. 45 ''t' articles for distilleries, were not then anticipated ; and, as it was naturally supposed that Great Britain, on a return of peace, might subject an intercourse with her West India pos- " Art. 17. It shall be lawful for the ships of war of either party, and 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 or enter the ports of either party ; nor shall the searchers or other officers of those places search the same, or make examination concerning the lawful- ness of such prizes ; but they may hoist sail at any time, and depart and carry their prizes to the places expressed in their commissions, which the commanders of such ships of war shall be obliged to show : 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 vigor- ously used, that they go out and retire from thence us soon as possible. " Art. 18. If ony ship belonging to either of the parties, their people or subjects, shall, within the coasts or dominions of the other, stick upon the sands, or be wrecked, or suffer any other damage, all friendly assistance and relief shall be given to the persons shipwrecked, or such as shall be in danger thereof. And letters of safe conduct shall likewise be given to them for their free and quiet passage from thence, and the return of every one to his own country. ** Art. 19. In case the subjects and inhabitants of either party, with their shipping, whether public and of war, or private and of mer- chants, be forced through stress of weather, pursuit of pirates or ene- mies, or any other urgent necessity for seeking of shelter and harbour, to retreat and enter into any of the rivers, bays, roads or ports belong- ing to the other party, they shall be received and treated with all hu- manity and kindness, and enjoy all friendly protection and help ; and they shall be permitted to refresh and provide themselves, at reasona- ble rates, with victuals and all things needful for the sustenance of their persons, or reparation of their ships, and conveniency of their voyage ; and they shall no ways be detained or hindered from return- ing out of the said ports or roads, but may remove and depart when and whither they please, without any let or hindrance. " Art. 20. For the better promoting of commerce on both sides, it is agreed, that if a war shall break out between the said two nations, six months after the proclamation of war shall be allowed to the mer- 46 TREATIES OF '78 WITH FRANCE. sessions to some disabilities, a perpetual supply of molasses was secured under this stipulation from the French islands. But it was an indiscreet, hasty and unequal provision. The chants in the cities and towns where they live, for selling and trans- porting their goods and merchandises ; and if any thing bo taken from them, or any injury be done them witiiin that term, by either party, or the people, or subjects of either, full satisfaction shall be made for the ■ante. " Art. 21. No subjects of the most Christian King shall apply for or take any commit jion, or letters of marque, for arming any ship or ships to act as privateers against the said United States, or any of them, or against the subjects, people, or inhabitants of the said United States, or any of them, or against the property of any of the inhabitants of any of them, from any prince or state with which the said United States shall be at war ; nor shall any citizen, subject, or inhabitant of the said United States, or any of them, apply for or take any commis* sion or letters of marque for arming any sljip or ships, to act as priva- teers against the subjects of the most Christian King, or any of them, or the property of any of them, from any prince or state with which the said king shall be at war; and if any person of either nation shall take such commissions or letters of marque, he sliall be punished as a pirate. " Art. 22. It shall not be lawful for any foreign privateers, not be- longing to subjects of the most Christian King, nor citizens of the said United States, who have commissions from any otijer prince or state in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchan- dises, or any other lading; neither shall they be allowed even to pur- chase victuals, except such os shall be necessary for their going to the next port of that prince or state from which they have commissions. " Art. 23. It shall be lawful for all and singular the subjects of the most Christian King, and the citizens, people and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made wiio are the proprietors of the merchandises laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the most Christian King, or the United States. It shall likewise be lawful for the sul)jects and inhabitants aforesaid, to sail with the shijjs and merchandises afore- mentioned, and to trade with the same liberty and security from the places, ports and havens of those who are enemies of both or either TREATIES OF '78 WITH FRANCE. 47 Americans might have had the carrying of the molasses, a single article of export from the islands, upon which no du- ties could be imposed, but France, by a slight discriminating party, without any opposition or disturbance whatsoever, not only di- rectly from tiie places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy, to another place be- longing to an enemy, whether they be under the jurisdiction of the same prince, or under several. And it is hereby stipulated, that free ships shall also give u freedom to goods, and that every thing shall bo deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any other part thereof should appertain to the ene- mies of either, contraband goods being always excepted. It is also agreed in like manner, that the same liberty be extended to persons who are on board a free ship, with this eilect, that although they be enemies to both or either party, they arc not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies. "Art. 24. This liberty of navigation and commerce shall extend to all kinds of merchandises, excepting those only which are distinguish- ed by the name of contraband, and under this name of contraband, or prohibited goods, shall be comprehended arms, great guns, bombs with the fusees, and other tilings belonging to them, cannon-ball, gun- l)owder, match, pikes, swords, lances, spears, halberds, mortars, pe- tards, granades, saltpetre, muskets, musket-ball, bucklers, helmets, breast plates, coats of mail, and the like kinds of arms, proper for arm- ing soldiers, musket-rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandises which fol- low, shall not be reckoned among contraband or prohibited goods ; that is to say, all sorts of cloths, and all other manufactures, woven of any wool, flax, silk, cotton, or any other materials whatever, all kinds of wearing apparel, together with the species whereof they are used to be made, gold and silver, as well coined as uncoined, tin, iron, latten, copper, brass, coals ; as also wheat and barley, and any other kind of corn and pulse ; tobacco, and likewise all manner of spices; salted and stnoked flesh, salted fish, cheese and butter, beer, oils, wines, sugars, and all sorts of salts ; and in general all provisions which serve for the nourishment of mankind and the sustenance of life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, ca- bles, sails, sail cloths, anchors, and any parts of anchors, also ships' masts, planks, boards and beams of what trees soever ; and all other things proper either for building or repairing ships, and all other aA. •M- ,*..^ i ~r"f 48 TREATIES OP '78 WITH FRANCE. duty in favour of her own vessels, could have secured the whole trade from the United States to the islands. The provision, it will be observed, applied only to the cargoes. goods whatever which have not heen worked into the form of any instrument or thing prepared for war by land or by sea, shall not bo reputed contraband, much less such as have been already wrought and made up for any other use : all which shall be wholly reckoned among free goods; as likewise all other merchandises and things which are not comprehended and particularly mentioned in the fore- going enumeration of contraband goods ; so that they may be trans- ported and carried in the freest manner by the subjects of both con- federates, even to places belonging to an enemy, such towns or places being only excepted, as are at that time besieged, blocked up or in- vested. " Art. 25. To the end that all manner of dissensions and quarrels may be avoided and |)revcntcd, on one side and the other, it is agreed, 1 !' r fWs, *'"** '" '''*^® either of the parties hereto should be engaged in war, the ships and vessels belonging to the subjects or people of the other ally, must be furnished with sea letters or passports, expressing the name, property, and bulk of the ship, as also the name and place of habita- ' tion of the master or commander of the said ship, that it may appear thereby that the ship really and truly belongs to the subjects ofoTie of the parties, which passport shall be made out and granted according to the form a::nexed to this treaty; they shall likewise be retailed • every year, that is, if the ship happens to return home within the s^)ace of a year. It is likewise agreed, that such ships being laden are to be provided not only with passports as abovementioned, but also with certificates, containing the several particulars of the cargo, the place whence the ship sailed, and whither she is bound, that so it may be known whether any forbidden or contraband goods be on board the same ; which certificates shall be made out by the officers of the place whence the ship set sail, in the accustomed form ; and if any one shall think it fit or advisable to express in the said certificates, the person to whom the goods on board belong, he may freely do so. "AuT. 2G. The ships of the subjects and inhabitants of either of the parties, coming upon any coasts belonging to either of the said allies, but not willing to enter into port, or being entered into port, and not willing to unload their cargoes or break bulk, they shall be treated I according to the general rules prescribed or to be prescribed, relative to the object in question. *'AaT. 27. If the ships of the said subjects people, or inhabitants of TREATIES or '78 WITH FRANCE. 49 This article was the only departure of any importance from the instructions of the Commissioners, and it was probably effected by the influence of Dr. Franklin, doubtless aided either of the parties shall be met with, either sailing along the coasts or on the high sens, by any ship of war of the other, or by any priva- teers, the said ships of war or privateers, for the avoiding of any dis- order, shall remain out of cannon shot, and may send their boats aboard the merchant ship which they shall so meet with, and may en- ter her to the number of two or three men only, to whom the master or commander of such ship or vessel shall exhibit his passport con- eerning the property of the ship, made out according to the form in- serted in this present treaty, and the ship, when she shall have show- ed such passport, shall be free and at liberty to pursue her voyage, so OS it shall not be lawful to molest or search her in any manner, or to give her chase, or force her to quit her intended course. " Art. 28. It is also agreed, thut all goods when once put on board the ships or vessels of either of the two contracting parties, shall be subject to no further visitation ; but all visitation or search shall bo made beforehand, ond all prohibited goods shall be stopped on the spot, before the same be put on board, unless there are manifest tokens or proofs of fraudulent practice ; nor slinll either the persons or guods of the subjects of his most Christian Majesty or the United States, be put under any arrest or molested by any other kind of embargo for that cause ; and only the subject of tiiat state to whom the said goods have been or shall be prohibited, and who shall presume to sell or alienate such sort of goods, shall be duly punished for the offence. "Art. 29. The two contracting parties grant mutually the liberty of having each in the ports of the other, consuls, vice consuls, agents, and commissaries, whose functions shall be regulated by a particular agreement. " Art. 30. And the more to favour and facilitate the commerce which the subjects of the United States may have with France, the most Christian King will grant them in Europe one or more free ports, where they may bring and dispose of all the produce and mer- chandise of the thirteen United States ; and his Majesty will also con- tinue to the subjects of the said states, the free ports which have been and are open in the French islands of America: of all which free ports the said subjects of the United States shall enjoy the use, agreeable to the regulations which relate to ihcm. " Art. 31. The present treaty shall be ratified on both sides^and the VOL. I. 7 t, : yyyw/iA'^^^^-^ } '".-V-*— • ■~,y~A/r i 99 TREATIES OP '78 WITH FRANCE. in the business by Mr. Deane. The other Commissioner, Mr. Lee, being opposed to it, (together with Mr. Izard, Com- missioner for the Italian States, in Paris at the time the trea- 'atifications tiliall be exchanged in the epaco of six months, or sooner if |H)88ible. "In faith whereof the respective plenipotentiaries have sigined the above articles, both in the French and English languages, declar- ing nevertheless, that the present treaty was originally composed and concluded in the French language, and they have thereto affixed their seals. "Done at Paris, this sixth day of February, one thousand seven hundred and seventy-eight. *'C. A. Gerard, [l. s.] *'B. Franklin, [l. ».] I. * " ' "Arthur Lee. [l. s.]" 64 TREATIES OF 'T8 WITH FRANCE. !!t: merce ; — the territorial ones were provided for in that of alliance. And, while the people of that kingdom were close- ly engaged with questions of reform and retrenchment in the domestic concerns of the state, their ministers privately me- ditated and carefully matured the ambitious and dazzling project of reanncxing to the French crown, by the aid of the Americans, its ancient iiefs on this continent, and extinguish- ing, at the same blow, every remaining title of British sove- reignty in the West India archipelago. Never was a plan better laid, or a moment more auspicious. But the peace of 1783 gave France neither colonies nor islands nor com- merce ; and the great Minister, who adjusted the parts of this bold scheme, was relieved by an early death, not only from the mortifying spectacle of its total and extraordinary failure, but of the bloody dissolution of the whole fabric of that government, with uhich this treaty of alliance had been concluded. Writers on French diplomacy considered the mode, in which this war was declared, a political error ; they reject- ed a direct alliance with the United States, and recommend- ed that France should have proceeded to hostilities on the ground of its own particular wrongs, more especially the in- sults offered by the English to French vessels, and oppres- sive maritime jurisdiction, unjustly exercised by that power on the French coasts. It is obvious, this distinction exists only in form. If France took the opportunity to attack Eng- land, while she was engaged in suppressing an insurrection in her colonies, the real effect would be in the eyes of the world, that France was disposed to assist those colonies, — it mattered very little, whether she formally recognised their independence, when she made herself a party to the very war that led to its establishment. It would be more correct to remark, that the fnst operations of the French, though skilfully planned, were executed in an awkward way; the fleet commanded by M, d'Estaing arrived too late on the coast ; the English had time to escape from the Delaware, and, though altogether inferior, they made such demonstra- tions off Sandy Hook as effectually deterred the French ad- TREATIES OP '78 WITH FRANCE. 55 miral. It has, also, been said by a French writer, that M. de Choiseul prepared, during his administration, the Ameri- can Revolution ; that he foresaw the mischief a separation would do England, and even at that time laid the foundation of it. A variety of circumstances present abundant proof, that this remark is altogether incorrect. It would have been nearer the truth to have said that during his administration, the spirit was created (and waited but for the administration of M. Turgot to be matured,) which fitted the French nation to enter with such a sincere and deep sensibility into the American Revolution. The government, at that early pe- riod, to repeat the word of an author already quoted, was itself " dissertateur ;" to the magnificence or licentiousness of the preceding reigns, had succeeded a philosophical spirit of inquiry ; and as early as 1775, the nation was entirely occupied with discussions on the unlimited freedom of com- merce, the suppression of monasteries, " corvees" and taxes on consumption ; the liberty of conscience, and of the press ; the recall of the Protestants ; the abolition of torture ; a civil code ; and a new system of public instruction. Those, who will be at the pains of reading the Memoirs and Correspond- ence of the eminent persons, who figured in those times, now before the public in a voluminous form, will obtain in a pleasipg way, a lively idea of the manner in which the edu- cated classes of the French notion were occupied, during the memorable years that preceded the American Revolution. The treaty was kept u cret till the month of March, in order that the French government might have time to recall its fishermen ; withdraw its commerce ; give notice to its colonies ; and put its navy in a proper condition to proceed to sea. In April, the Count d'Estaing sailed with a large squadron front Toulon for the American coast. Either the preparations for war were so openly made, that each party was only waiting for the first direct aggression, or the French government feared the eftects, the British Commissioners, appointed under Lord North's conciliatory bills, then about to embark for America, would produce in that country. At 56 TREATIES or '78 WITH FRANCE. any rate, the French Minister at St. James', the Marquis de Noailles, was directed to notify to that court the signature of the treaties, though the ratifications had not been ex- changed. This notification will be found in Flassan. ; i^.r Franklin and his colleagues soon after went to court in a public manner. . , . j ;.,i " They were presented by Count de Vergennes to the Kingf, who received them graciously ; they were afterwards presented to the Queen, to Monsieur, then Count de Provence, and to all the members of the royal family, then at Versailles. They were af- terwards introduced to the Count de iMnurepas, first minister, &c., and these introductions being over. Dr. Franklin and his colleagues, with Dr. Bancroft and the editor of these memoirs, dined with the Count of Vergennes, and in the evening went by particular invitation to ' Jeu de la Reine,' where they found the royal family seated at play round a large table ; a considerable heap of louis d'ors lay be- fore each of the players, and from the number of these, which, from time to time, were shovelled by the losers to the winners, the gaming appeared to be high. On this occasion. Dr. Franklin was honour- ed by the particular notice of the Queen, who courteously desired him to stand near to her, and as often as the game did not require her immediate attention, she took occasion to speak to him in very obliging terms. Dr. Franklin was presented to the King in the gallery of Versailles, by the Count de Vergennes, Minister for Fo- reign Affairs. His age, his venerable appearance, the simplicity of his dress on such an occasion ; every thing that was either singular or respectable in the life of this American, contributed to augment the public attention. Clapping of hands, and a variety of other demonstrations of joy, announced that warmth of affection, of which the French are more susceptible than any other people, and of which their politeness and civility augments the charm to him, who is the object of it, " His Majesty addressed him as follows : " ' You may assure the United States of America of my friend- ship. I beg leave also to observe that I am exceedingly satisfied in particular with your own conduct during your residence in my kingdom.' When the new ambassador after this audience, crossed the court in order to repair to the office of the minister of Foreign TREATIES OF '78 WITH FRANCE. 6t Affairs, the multitude waited for him in the passage, and hailed him with their acclamations/'* M. Gerard was appointed by his Christian Majesty Minis, ter Plenipotentiary to the United States in the beginning of the year '78. He sailed in April, on board the Languedoc, Count d'Estaing's flag-ship, together with Mr. Silas Deane, who had received letters of recall. M. Gerard embarked secretly. He arrived safely in America, and on the 14th of July, a committee of Congress was appointed to arrange the time and manner of receiving the Minister. The very un- common circumstance of the occasion must be our apology for extracting at length an account of the ceremonial of re- ception, and of the address made by the President. " In pursuance of the ceremonial established by Congress, the Hon. Rj'hard Henry Lee, Esq. one of the delegates f m Virginia, and the Hon. Samuel Adams, Esq., one of the delegate from Mas- sachusetts Bay, in a coach and six provided by Congress, waited upon the Minister at his house. In a few minutes, the Minister and the two delegates entered the coach, Mr. Lee placing himself at the Mini :ler'B left hand on the back seat, Mr. Adams occupying the front seat, the Minister's chariot, being behind, received his secre- tary. The carriages being arrived at the state-house in this city, the two members of Congress, placing themselves at the Minister's left hand, a little before one o'clock, introduced him to his chair in the Congress chamber, the President and Congress sitting. — The * We have, perhaps, already too much multiplied extracts in the text, but we beg to introduce one more from a very entertaining wri- ter on the French court. " Franklin appeared at court in the dre'J of an American cultivator. His straigiit, unpowdered hair, his round hat, his brown cloth coat, formed a contrast with the laced and em- broidered coats, and the powdered and perfumed heads of the cour- tiers of Versailles. This novelty turned the enthusiastic heads of the French women. Elegant entertainments were given to Dr. Franklin, who to the reputation of a Philosopher, added the patriotic virtues which had invested him with the noble character of an Apostle of Li- berty. I was present at one of these entertainments, when the most beautiful wotnan out of three lnuidred, wa? .^elected to place a crown of laurels upon the white head of the American philosopher, and two kisses upon his cheeks." VOL.. I. Q '■V 58 TREATIES OF '78 WITH FRANCE. Minister being seated, he gave his credentials into the hands of his secretary, who advanced and delivered them to the President. The secretary of Congress then read and translated them ; which being done, Mr. Lee announced the Minister to the President and Congress ; — at this time the President, the Congress, and the Minis- ter rose together ; he bowed to the President and the Congress, — they bowed to him ; whereupon, the whole seated themselves. In a moment the Minister rose and made a speech to Congress, they sitting. The speech being finished, the Minister sat down, and giving a copy of bis speech to his secretary, he presented it to the President. The President and the Congress then rose, and the President pronounced their answer to the speech, the Minister standing. The answer being ended, the whole were again seated, and the President, giving a copy of the answer to the secretary of Congress, he presented it to the Minister. The President, the Congress, and the Minister then again rose together : the Minister bowed to the President, who returned the salute, and then to the Congress, who also bowed in return ; and the Minister having bow- ed to the President, and received his bow, he withdrew, and was attended home in the same manner in which he had been conduct- ed to the audience. Within the bar of the house the Congress formed a semicircle on each side of the President and the Minis- ter : The President sitting at one extremity of th« circle at a table upon a platform elevated two steps — the Minister sitting at the op- posite extremity of the circle in an arm-chair upon 'he same level with the Congress. The door of the Congress chamber being thrown open below the bar, about two hundred gentlemen were admitted to the audience, among whom were the Vice President of the Supreme Executive Council of Pennsylvania, the Supreme Executive Council, the Speaker and Members of the House of As- sembly, several foreigners of distinction, and officers of the army. The audience being over, the Congress and the Minister at a pro- per hour repaired to an entertainment given by the Congress to the Minister, at which were present by invitation several foreign- ers of distinction and gentlemen of public character. The enter- tainment was conducted with a decorum suited to the occasion, and gave perfect satisfaction to the whole company. " In Congress, Aug. 6, 1778. " According to order, the honourable the Sieur Gerard being i 1 tds of his ■ 'resident. :S i; which [dent and le Minis- igress, — Ives. In ess, they >wn, and it to the and the Minister n seated, retary of Jent, the Minister s 3n to the h ing bow- ;' and was conduct- [longress e Minis- t a table t the op- ne level r being en were resident upreme e of As- 5 army. t a pro- i;ress to breign- 1 enter- on, and 8. being TREATIES OP '78 WITH tlLAitCK. 5d introduced to an audience by the two members for that purpose appointed, and being seated in his chair, his secretary delivered to the President a letter frnm his most Christian Majesty, which was read in the words following : " Very dear, great friends and allies — " The treaties, which we have signed with yon in consequence of the proposals your Commissioners made to us in your behalf are a certain assurance of our affection for the United States in gene- ral and for each of them in particular, as well as of the interest we take and constantly shall take in their happiness and prosperity. It is to convince you more particularly of this, that we have nomi- nated the Sieur Gerard, Secretary of our Council of State, to re- side among you in the quality of our Minister Plenipotentiary. He is better acquainted with our sentiments towards you and the more capable of testifying the same to you, as he was intrusted on our part to negotiate with your Commissioners, and signed with them the treaties, which cement our union. We pray you to give full credit to all he shall communicate to you from us, more especially when he shall assure you of our affection and constant friendship for you. We pray God, very dear, great friends and allies, to have you in his holy keeping. Your good friend and ally. (Signed) « LOUIS. « Versailles, March 18, 1778. (Undersigned) " Gravier de Vergennes. (Directed) — " To our very dear, great friends, the President and Members of the General Congress of North America." Omitting the speech of M. Gerard, the following was the answer of the President on the occasion. " Sir, — The treaties between his most Christian Majesty and the United States of America, so fully demonstrate his wisdom and magnanimity as to command the reverence of all nations. The virtuous citizens of America, in particular, can never forget his beneficent attention to their violated rights, nor cease to acknow- ledge the hand of a gracious I'rovidence in raising them up so powerful and illustrious a friend. It Is the hope and opinion of Congress, that the confidence his Majesty reposes in the firmness of these States will receive additional strength from every day's experience. This assembly are convinced, sir, that if it had rest- r • 1 • t f 60 TR£ATIBS OF '78 WITH FRANCE. ed solely with the most Chiistian King, not only the independence of these States would have been universally acknowledged, but their tranquillity fully established. We lament that lust of domi- nation which gave birth to the present war, and hath prolonged and extended the miseries of mankind. We ardently wish to sheathe the sword and spare the further effusion of blood ; but we are determined by every means in our power to fulfil those event- ual engagements, which have acquired positive and permanent force from the hostile designs and measures of the common enemy. Congress have reason to believe that the assistance so wisely and generously sent, will bring Great Britain to a sense of justice and moderation, promote the common interests of France and America, and secure peace and tranquillity on the most firm and honourabl'j foundation. Neither can it be doubted that those, who adminii^ter the powers of government within the several states of this Union, will cement thiit connexion with the subjects of France, the bene- ficial effects of which have already been so sensibly felt. Sir, from the experience we have had of your exertions to promote the true interests of our country, as well as your own, it is with the highest satisfaction Congress receives, as the first Minister from his most Christian Majesty, a gentleman whose past conduct affords a happy presage, that he will merit the confidence of this body, the friendship of its members, and the esteem of the citizens of America." Dr. Franklin, having been elected Minister to the Court of France, his letter of credence was agreed to by Congress on the 21st October 1778 ; — the first Minister Plenipoten- tiary to a foreign court, appointed by this country. We be- lieve no one will have doubts of the propriety of appointing a single envoy to Versailles, after reading Dr. Franklin's own remarks on the subject. — " Speaking of Commissioners in the plural, puts me in mind of enquiring, if it can be the intention of Congress to keep three am- bassadors at this Court. We have, indeed, four with the gentle- man intended for Tuscany, who continues here, and is very angry, that he was not consulted in making the treaty, which he could have mended in several particulars, and, perhaps, he is angry with some reason, if the instructions to him do, as he says they do, re- quire us to consult him. We shall soon have a fifth, for the envoy TREATIES OF '78 WITH TBAITCE. fl^ to Vienna, not being received there, is, 1 hear, returning hither.— The necessary expense of maintaining us all is, 1 assure you, enor- mously great. I wish the utility may equal it. I imagine every one of us spends nearly as much as Lord Stormont* did. It is true, be left behind him the character of a niggard, and when the ad- vertisement appeared for the snie of his household goods, all Paris laughed at an article of it, perhaps, very innocently expressed, " a great quantity of table linen, that has never been used." " That is very likely," say the French, " for he never invited any one to dine." But as to our number, whatever advantage there might be in the joint counsels for framing and adjusting the articles of the treaty, there can be none in having so many for managing the common business of a president here. On the contrary, all the advantages in negotiation that result from secrecy of sentiment and uniformity in expressing it, and in common business for de- spatch, are lost. In a Court too, where every word is watched and weighed, if a number of Commissioners do not every one hold the same language in giving their opinion on any public transaction, this lessens their weight ; and where it may be prudent to put od or avoid certain appearances of concern, for example, or indiffer- ence, siitisfaction or dislike, where the utmost sincerity and can- dour should be used, and would gain credit, if no semblance of art showed itself in the inadvertent discourse, perhaps, of only one of them, the hazard is in proportion to the number. And where every one must be consulted on every particular of common busi- ness, in answering every letter, and one of them is offended, if the smallest thing is done without his consent, &c. The difficulty of being often and long enough together, the different opinions and the time consumed in debating them, the interruption by new ap- plicants in the time of meeting, &c. — occasions so much postponing and delay, that correspondence languishes and occasions are lost, and the business is always behind hand. 1 have mentioned the dif- ficulty of being often and long enough together : this is considera- ble, where they cannot be all accommodated in the same house : But to find three people, whose tempers are so good and who like one another's company and manner of living and conversing as to agree with themselves, though living in one house, and whose ser- vants will not, by their indiscretion, quarrel with one another, and * English Minister. i^ dd TREATIXS or *78 WITH FRANCS. bj artful mIsrepresentRtions draw their masters in to take their parts, to the disturbance of necessary harmony, these are difficul- ties still greater, and almost insurmountable. And in consideration of the whole, I sincerely wish the Congress would separate us/' In September '79, M. Gerard had a private audience of Congress in order to take leave. He was succeeded by the Chevalier de la Luzerne.'"' This gentleman, created a Mar- quis, obtained, in 1784, the permission of his court to re- turn, and was succeeded by M. de Marbois as Charge d'Af- faires. After he had sailed for Europe, M. de la Luzerne received from Mr. Jefferson, Secretary of State under the new government, the following flattering letter. " New- York, April 30, 1790. " Sir, — When in the course of your legation to the United States, your affairs rendered it necessary that you should absent yourself a while from that station, we flattered ourselves with the hope that that absence was not final. It turned out in event, that the interests of your sovereign called for your talents and the exercise of your functions in another quarter. You were pleased to an- nounce this to the former Congress, through their Secretary for Foreign Affairs, at a time when that body was closing its adminis- tration, in order to hand it over to a government, then preparing on a different model. This government is now formed, organised, and in action, and it considers among its earliest duties, and assur- edly among its most cordial, to testify to you the regret, which the people and government of the United Stated' (elt at your removal from among them — a very general and sincere regret, and temper- ed only by the consolation of your personal advancement, which accompanied it " You will receive, sir, by order of the President of the United States, as soon as it can be prepared, a Medal and Chain of gold, of which he desires your acceptance, in token of their esteem and of the sensibility, with which they will ever recall your legatioti to their memory. , , j„ * " M. de la Luzerne's family is among the best and most honoura- ble of this country. He has been Minister to the court of Munich, and is a gentleman of honour and ability." Extract from a letter of A. Lee. TREATIES or '78 WITH FRANCE. Jnited gold, !m and tgatioil '* But ai this compliment may, hereafter, be rendered to other nisfiioos, from which your's was distinguished by eminent circum- stances, the President of the United States wishes to pay you the distinguished tribute of an express acknowledgment of your ser- vices, and our sense of them. You came to us, sir, through all the perils, which encompassed us on all sides. You found us strug- gling and suffering under difl'culties as singular and trying, as our situation was new and unprecedented. Your magnanimous nation had taken side with us in the conflict, and yourself became the centre of our common councils, the link which connected our com- mon operations. In that position, you laboured without ceasing, till all our labours were crowned with glory to your nation, free- dom to ours, and benefit to both. During the whole, we had con- stant evidence of your zeal, your abilities, and your good faith ; and we desire to convey this testimony of it home to our own breast, and to that of your sovereign, our best and greatest friend : and this I do, sir, in the name and by the express instruction of the President of the United States." An unfortunate and disagreeable misunderstanding took place, during Dr. Franklin's residence as Minister, between M. de Vergcnnes and Mr. Adams. The first commission of Mr. Adams had been annulled by Franklin's appointment to Versailles, but in 1779 he returned to France in the frigate La Sensible, having been elected by Congress sole Commis- sioner for a peace with England, — a measure adopted by the advice of Vergennes. Mr. Adams fixed his residence at Pa- ris ; and his letters to Congress are valuable for the reports of news, remarks on the political state of Europe, and for copies of the principal European state papers of the times. It is obvious, he was not an accredited Minister, but having been much in France, fully in the confidence of his own go- vernment, and probably on a friendly footing with the prin- cipal Minister at Versailles, it is not surprising, he should have felt himself entitled to ofTer his advice freely on public affairs. But some observations, concerning a resolution of Congress of March 18, '80, and a disposition of part of the French fleet, were not received in the spirit, by which they were doubtless dictated. The tone of M. de Vergennes' 4 TREATIES OF '78 WITH FRANCE. reply was such as necessarily put an end to the correspond- ence, though no notice appears to have been taken of the business by Congress. " I have received," said the Minis- ter, (* the letter you did me the honour to write me on the 27th of this month. 1 did not expect the animadversions, you have thought it proper to make on a passage of my let- ter of the 20th current. To avoid any further discussions of that sort, I think it my duty to inform you, that Dr. Frank- lin, being the sole person that has letters of credence to the King from the United States, it is with him only, that I ought and can treat of matters, which concern them, and particularly of that, which is the subject of your observa- tions." This letter was sent July 31, 1780, by Vergennes to Franklin, with the following remarks — " The character with which you are invested, your wisdom, and the confi- dence I have in your sentiments and fine principles, induce me to communicate to you a correspondence I have had with Mr. Adams. You will find, I think, in the letter of that plenipotentiary, opinions and a turn, which do not corres- pond, either with the manner in which I explained myself to him, or with the intimate connexion, subsisting between the King and the United States. You will make the use of these papers your prudence shall suggest. As to myself, I desire you will transmit them to the Congress, that they may be informed of the line of conduct Mr. Adams pursues in regard to us, and that they may judge, whether he is en- dowed with that conciliatory disposition, which is necessary for the important and delicate business, with which he is in- trusted." — These letters were transmitted to Congress, with some remarks by Dr. Franklin. " Passy, August 9, 1780. " To His Excellency Samuel Huntington, President of Congress. " Mr. Adams has given offence to the Court here by some sentiments and expressions, contained in several of his letters, written to the Count de Vergennes. I mention this with reluc- tance, though, perhaps, it would have been my duty to acquaint you with such a circumstance, even if it were not required of me by the Minister himself. He has sent me copies of the corres' TREATIES OF '78 WITH FRANCE. 65 pondence, desiring I would commimicntc them to Congress, and I send them herewith. Mr. Adutns did not show mo his letters be< fore he sent them. I have, in n former letter to Mr. Lovell, men- tioned some of the inconveniences that attend the having more than one Minister at the same Court, one of which inconveniences is, that they do not always hold the same language, and that the impressions, made by one, and intended for the service of his con- stituents, may be eiraced by the discourse of the other. It is true, that Mr. Adams's proper business is elsewhere, but the time not being come for that business, and having nothing else here where- with to employ himself, he seems to have endeavoured supplying, what he may suppose my negotiations defective in. He thinks, as he tells me, himseli', that America has been too free in expressions of gratitude to France, for that she is more obliged to us than we are to her, and that we should show spirit in our applications. I ap. prehend that he mistakes his ground, and that this Court is to be treated with decency and delicacy. The King, a young and virtu- ous prince, has, I am persuaded, a pleasure in reflecting on the ge- nerous benevolence of the action in assisting an oppressed people, and proposes it as a part of the glory of his reign : I think it right to increase this pleasure by our thankful acknowledgments, and that such an expression of gratitude is not only our duty, but our interest. A different conduct seems to me what is not only impro- per and unbecoming, but what may be hurtful to us. Mr. Adams, on the other hand, who at the same time means our welfare and interest as much as I, or any man can do, seems to think a little apparent stoutness and greater air of independence and boldness in our demands, will procure us more ample assistance. It is for the Congress to judge and regulate their affairs accordingly. M. de Vergennes, who appears much offended, told me yesterday that he would enter into no further discussions with Mr. Adams, nor an- swer any more of his letters. He is gone to Holland, to try, as he told me, whether something might not be done to render us a little less dej)endent on France, lie says, the ideas of this Court, and those of the people in America, are so totally different, as that it is impossible for any Minister to please both. He ought to knoiy America better than I do, having been there lately ; and he may choose to do, what he thinks will best please the people of Ame*' f ica : but when I consider the expressions of Congress ij) many pf vol,. 1. 66 TREATIES OF '78 WITH KBANCE. their public nets, nnd particularly in their letter to the Chevalier dc lii Luzerne, of the 24th of May last, I cannot but imngine that he mistakes tho sentiments of u few for n general opinion."* ; " B. FK AN KLIN." Though not precisely connected with the subject of this chapter, yet as an incident in Dr. Franklin's embassy, and as belonging to the diplomacy of the period, we shall here insert two letters which passed, in 1784, between him and the Count de Mercy Argenteau, Minister Plenipotentiary of his Imperial Majesty. " I have the honour (July 30, 1784) to communicate to your Excellency an extract from the instructions of Congress to the late Commissioners, expressing their desire to cultivate the friendship of his Imperial Majesty, and to enter into n treaty of commerce for the mutual benefit of the two nations, which I request you will be pleased to lay before his Imperial Majesty. The appointing and instructing' Commissioners for treaties of commerce with the Euro- pean powr from having recovered the bodily strength 1 before enjoyed. I do not know that my mental faculties are im- paired, perhaps I shall be the last to discover tbat, but I am sensi- ble of a great diminution in my activity, a quality, I think, particu- larly necessary in your Minister for this Court. I am afraid, there- fore, that your affairs may, some time or other, suffer by my deti- ciency. I find, also, that the business is too heavy for me, and too confining. The constant attendance at home, which isi necessary for receiving and accepting your bills of exchange (a matter fo- reign to my ministerial functions) ; to answer letters, and pcrO^rm other parts of my employment, prevents my taking the air and exercise, which my annual journeys formerly used to afford me, and which contributed much to the preservation of my healt!.. There are many other little personal attentions, which the infirmi- ties of age render necessary to an old man's cuinfort, even in some degree to the continuance of his existence ; and with which busi- ness often interferes. I have boon engaged in public affairs, and enjoyed public confidence in some shape or other, dunng the long term of fifty years, an honour sufficient to satisfy any reasonable am- bition, and I have no other left than that of repose, which 1 hope the Congress will grant me, by sending some person to supply my place. At the same time, 1 beg they may be assured, that it is not any, the least, doubt of their success in the glorious cause, nor any disgust received in their service, that induces me to decline it, but purely and simply the reasons above mentioned. And as 1 cannot at present undergo the fatigues of a sea voyage (the last having been almost too much for me), and would not again expose myself to the hazard of capture and imprisonment in this time of war, I '■ ,» 68 tKEATIES OB' '78 WITH FRANCE. purpose to remain here, at least, till the peace, perhaps it may be for the remainder of my life, — and if any knowledge or experience I have acquired here may be thought of use to my successor, I shall freely communicate it, and assist him with any influence I may be supposed to have, or counsel that may be desired of me."* Before Dr. Franklin's departure, he received from M. de Vergennes a letter, of which every one will acknowledge the just and appropriate character of the sentiments, though the form of the expressions is altogether heartless and office- like. " I have learnt with much concern your retiring, and approaching departure for America. You should not doubt but that the regrets you will leave, will be proportionate to the consideration, you so justly enjoy. I can assure you, sir, that the esteem the King entertains for you, leaves you nothing to desire, and that his Majesty will learn, with real satisfaction, that your fellow citizens have rewarded, in a manner worthy of you, the important services you have ren- dered them. I beg, sir, that you will preserve me a share in your remembrance, and never doubt of the sincerity I take in your happiness. It is founded on the sentiments of attachment of which I have assured you, and with which I have the honour to be," &c. Dr. Franklin had the uncommon honour and good fortune * Extract of a letter from John Jay, &c. "Madrid, 21st April 1781. (Private.) — By the letter from Dr. Franklin, herewith enclosed, and which he was so obliging as to leave open for my perusal, I find he has requested permission to retire, on account of his age, infirmi- ties, Sec. How far his health may be impaired, I know not. The let- ters I have received from him bear no marks of ago, and there is an acuteness and sententious brevity in thorn, which do not indicate an understanding injured by j'cars. I have many reasons to think our country much indebted to him, and I confess it would mortify my pride as an American, if his constituents should be the only people, to whom his character is known, that should deny his merit and services the testimony given them by other n-itions. Justice demands of me to assure you, that his reputation and re?pcctability are acknowledg- ed, and have weight here, and that I have received from him, all that Uniform attention and aid, which was due to the importance of the af- fairs committed to mc." TREATIES OF '78 WITH FRANrE. ed of taking a principal part in forming the two most important treaties made by America ; — the treaty of Alliance and Com- merce with France, and the first treaty with England, in which the mother country acknowledged the independence of these United States. His name stands on both these in- struments. His long residence in France, it is well known, was agreeable to the French court, though we have never been able to ascertain the grounds of a remark, often made, that this arrangement was effected by the intrigues of M. de Vergennes, who found Dr. Franklin more obsequious than either of his colleagues. Dr. Franklin was named Envoy at the Court of Versailles with uncommon propriety. He was the oldest Commissioner in Europe, advanced in life, and on account of his great celebrity in philosophy, undoubtedly pos- sessed considerable influence. He was employed to much more advantage abroad, than he could have been at home, for he possessed talents, manners and address, exceedingly suitable to his station and the afl'airs in which he was en- gaged. In March 1785, Thomas Jefferson was chosen Minister Plenipotentiary to succeed D:. Franklin at the court of Ver- sailles. Mr. Jefferson had been engaged in a great deal of important business at home ; but before this period, had not been employed abroad, though elected to the commission for the peace with England.* * During Mr. Jefibrson's first residence in Paris, an individual, whose name is not given, waited on liim, and informed him, that he had in his possession Mr. Silas Dcane's letter-book and all his ac- counts, whicli he proposed to sell to tiie English Minister for 150 guineas. Mr. Jefferson examined the papers, and returned them, as he had no authority to make jturchases of that sort ; — and was told by the person, that he should sell them to the British government. Hav- ing transmitted an account of this business to Congress, Mr. Jefltrson subsequently received authority to buy the manuscripts, which he ef- fected, by means of a friend in London, for 40 guineas. They were deposited in the Department of State. The individual was, no doubt, sent by Deane himself; and it is quite evident, that the British go- vernment did not coiieidcr the papers of any value ; or, at least, not worth 40 guineas. m ( ^0 ) CHAPTER III. TREATY OF 1783 WITH THE NETHERLANDS. Second power to make a Treaty with United States — War between United Provinces and England — Causes — Lee, failing at Berlin, etiters secretly into a correspondence with the Regency of Amsterdam — not suspected by Sir Joseph Yorke — Early correspondence between Van Berckel and commissioners — Lee agrees, at Frankfort, on a Treaty with JVeufville — Secret discovered by capture of Laurens — Amstersdam richest City in Europe — Laurcns^s letters from Tower of London — Laurens chosen to Holland — Subsequently Adams — [lis 1st' ters from Holland — States General very dilatory in recognising In- dependence — Three classes of Treaties — Remarks on A''ational Law — JVeutral Rights badly defined — United States first commercial rival of England — Other nations rivals in war — Mr. Adams con- cludes a Treaty, and makes Loans — Fan Berckel appointed Minister to United States. The government of the United Netherlands,* was the second power in Europe, that made a treaty with the Unit- * The reader will observe, that tliis kingdom, as now constituted, did not exist, until tiie year 1814 j it is one of the creations of the trea- ties of Paris, and of Vienna. The treaty of Paris, of May of that year, assigned to Holland, placed nndcr the goveninicnt of the Honse of Orange Nassau, an addition of tcrritoi v . To this dominion, the Allied Sovereigns, at the time they were in London, in the snmnier of 1814, annexed Belgium. — (SchocU, vol. x, p. 534.) The limits of this king- dom were afterwards defined, in the 2d article of the treaty of Vienna, of May 1815. — (Recueil dcs Pieces Oflicielles, &c. vol. viii. p. 309.) In the time of the American Revolution, Belgium, (laBelgiqne,)a modern French name, (Belgica Gallia,) for what was called, in English geo- graphy, the Netherlands, or the Low Countries, was divided into French, Dutch, and Austrian Flanders, and did not exist as a separate government. The treaty of 1783 was made with that part of the present kingdom of the Netherlands, called, in the treaty of Paris of 1814, Holland. It is well known, in history, by the title of the States General, or Seven United Provinces of Holland. ■^ TREATY OF '82 WITH THE NETHERLANDS. 11 ed States, though not actually signed, till the year 1782, towards the close of the revolution ; but with the exception of France, America derived more aid from Holland, in the shape of miUtary stores, and money, and by obtaining pro- tection for her vessels in tht Dutch West Indies, than any other Slate in Europe. The connexion of Holland with America, — the severity with which England exercised her great power on the ocean, in relation to convoys, contrabands, and the privileges of the neutral flag, in the beginning of the contest with the colo- nies, — produced a feeling of extreme irritation and jealousy i and ultimately led, in 1780, to a declaration of hostiliti'^s, on the part of the latter government. An English writer ha8 explained, in a full and able manner, the cause of this war, an event, in which the United States were, at the time, greatly interested. We cannot do better than extract a portion of his remarks; though a proper allowance should be made, for the warmth witii which the author vindicates the acts of his government, and the princi;;les of English maritime law : — "At th^- commencement of hostilities between Great Britciin and her colonies, Ilollund, in conformity uiih the conduct of other Eu- ropean powers, forbad the export of ammunition and stores for one year ; but, when the success of the colonists, and the declaration of independence, afforded flattering hopes of acquiring a portion of that commerce, which the English had hitherto monopolized, Hol- Uipd brgan to grasp at the advantage, and encouraged an illicit trade with America. Every motive arising from long and benefi- cial alliance, similarity in religion, and political interests, combin- ed to deter Holland from a mode of conduct, repugnant from the interests of Great Britain; but a faction, in the French interest, and inimical to the Stadtholder, inHuenced all the proceedings of government. The open encoura'^ement, afforded to American privateers, in the Dutch West India islands, occasioned a long cor- respondence, which terminated in the delivery of a spirited me- morial by Sir Joseph Yorke, the British ambassador at the Hague. Th(i States General returned an humble and complying answer, denying an intention to recognise the independence of America, if^ 72 TREATY OF '82 WITH THE NETHERLANDS. and conseDting to the recall of Van Graaf ; but they complained of the harsh terms in the memorial, — and, as a mark of indignation, ordered Count Walderen, their envoy extraordinary in London, not to correspond, on the occasion, with Sir Joseph Yorkc, or Lord Suffolk, the secretary of state, but to deliver his memorial to the King in person." " Sir Joseph Yorke had resided in Holland 27 years, was thoroughly acquainted with the state and temper of parties, and knew the preponderance of French interest, and the fatal supineness of the Stadtholder. He vindicated, in an able me- morial, the conduct of Great Britain ; and, while he displayed the moderation of the King, in not plunging Holland into a war, by de- manding the succours, stipulated in the treaties of 1G70 and 1716, proposed to discuss the grievances in a conference, — prefacing the offer with an assurance, that the prevention of contraband trade should, in the mean time, be subject to no interpretation, unwar- ranted by the rules of equity, and the practice of perfect generosi- ty. This proposal occasioned violent exertions among the French party. The Duke de Vauguyon, ambassador from the court of Versailles, endeavoured to pique the pride and interest of the Dutch, by demanding a clear and explicit determination, to accept or renounce the advantages of commerce, proffered by a decree of the French Council of State, allowing the traffic in naval stores, during the war. Tlie proposition was not, however, accepted ; find the French Court repealed the permission given to Holland, of trading with them dutyfree, — adinitting, to the exclusive enjoy' ment of this privilege^ Amsterdam cdone^ ' in consideration of the pa- triotic exertions made by that city, to persuade the republic to pro- cure, from the court of London, the security of that unlimited com- merce, which belonged to the Dutch flag.' " — —"The arts and influence of France were, however, more effectual than the re- monstrances of England ; and, when Spain was added to the hostile combination, the striking partiality of Holland, towards the ene- mies of Great Britain, rendered more decisive explanations indis- pensable. Sir Joseph Yorke, therefore, in pursuance of instruc- tions from England, demanded from the States General the suc- cours, stipulated in the several treaties, of wiiich the casus fiederis was fully explained in the separate article of 171G." " At this juncture, a fresh cause of dispute arose, in consequence of the re- esjeption afforded to Piiul Jones and his prizes, in the harbours of TREATY OF '83 WITH THE NETHERLANDS. 73 the republic. Sir Joseph Yorke demanded the detention of the shipi and crews ; as Paul Jones, though a pretended American, was a native of Scotland, a pirate, rebel and str.te criminal. The States General refused compliance, alleging their constant maxim, not to decide on the legality of captures by the vessels of any other country." " The state of sullen dissatisfaction, which oc- casioned the abolition of the ancient connexion between Great Britain and Holland, resolved itself into active hostility ; the mys- tery, which had covered the views and conduct of the Dutch, was dispelled by accident; and the court of Great Britain was impelled to a firm and decisive mode of conduct, as well in resentment of past treachery, as with a view to counteract the effects of the neu- tral league. The Vestal frigate, commanded by Captain Keppel, took, near the Bunks of Newfoundland, a Congress packet. The papers were thrown overboard but, by the intrepidity of an Eng- lish sailor, recovered with little damage. They fully proved the perfidy of the Dutch ; who, before the existence of any dispute, entered into a formal treaty of amity and commerce with the re- volted colonies, fully recognising their independence, and contain- ing many stij)ul;itions, highly injurious to England, and beneficial to her enemies, both in Europe and America. Disagreements on some of the arrarigemonts, had occasioned delays in its completion ; but Ilcnry Laurens, late President of the Congress, who was one of the passengers in the captured vessel, was authorized to nego- tiate definitively, and entertained no doubt of success." "This remonstrance also failing, a royal manifesto was issued, declaring liostilities against Holland." We shall have occasion to remark, under the head of Prussia, that William Lee, of Virginia, was sent by Congress to Berlin, as commissioner, as early as 1777 ; but it does not appear that any person had been directed to proceed to Hol- land ; for the ancient alliances, and friendly treaties, between the provinces and Great 15ritain, made it extremely unlikely, any assistance could be obtained in that quarter. The great- er part of Dutch commerce being obliged to pass through the British channel, and the navy being in a state of decay, Holland was necessarily under the control, to a great degree, of the English fleets. It is evident, however, that as early VOL. I. 10 74 TREATY OF '82 WITH THE NETHERLANDS. as October 1778, some correspondence had taken place be- tween the commissioners at Paris and Francis Van Berckel, a burgomaster of Amsterdam. In answer to a letter from him, they propose that a person should be sent to Aix-la- Chapelle to treat of the business of a Convention in the most secret manner. But this intercourse was never suspected by the British minister. Sir Joseph Yorke.* Though his letters to the States General abound with complaints and re- monstrances, upon ' almost all topics, touching the neutral character of the Dutch, there is not the most distant allusion to any secret correspondence between any one of the provin- ces and the American government. He certainly was not aware, that the confederacy had an agent at Amsterdam, or its neighbourhood. The correspondence, however, was con- fined to the government of one of the principal towns of the United Provinces, well known to have great influence over the whole Dutch confederacy ; and there is no reason to suppose, that it was known to the States General. On the 4th of September 1778, Mr. Lee agreed with M. de Neuf- vilie, a respectable merchant of Amsterdam, acting by the authority of Mr. Van Berckel, pensionary of the city, on the plan of a treaty of commerce and amity between the two countries. These gentlemen appear to have met by acci- dent at Frankfort, (Mr. Lee being, probably, on his return from Germany) and in that city the treaty was drawn up and signed. f He had no authority from the commissioners to act, and they afterwards disavowed the proceeding, though in a letter to the secret committee from Paris, dated Sep- tember 12, 1778, he expresses some doubts, whether he shall communicate the instrument to them. But the transac- tion was the official act of the pensionary, as appears from the following declaration. " This is a rough plan of a Treaty of Commerce, which, in consequence of the appoint- ment and instructions of the honourable Mr. Engelbert Fran- cis Van Bercke., counsellor, pensionary of the city of Am- sterdam, to me, John de Neufville, citizen of the said city of * Afterwards Lord Dover. t See Parliamentary His. vol. xxi. app. 98, for this treaty. TREATY OF '82 WITH THE NETHERLANDS. 75 Amsterdam, I have perused, considered and settled with William Lee, Esq. Commissioner of Congress, as a proper treaty of commerce to be entered into between their high mightinesses, the States of the jven United Provinces of Holland, and the United States of North America. This done at Aix-la-Chapellc, the 4th of September 1778. John de Neufville." We shall not extract any portion of this treaty, as it does not differ materially from the one, subsequently concluded with the provinces, though not so full and definite in some provisions. Mr. Lee was not furnished with power, from his government, even to open a negotiation, and the regency of Amsterdam acted, in the business, only by their own au- thority. The instrument, it is obvious, was not binding upon either party. Indeed, it may well be matter of doubt, whether the proceeding was much more than the private act of Mr. Van Berckel and his friends ; for Amsterdam was, at that time, the centre of the factions and parties, that dis- tracted and divided the " republic." It appears, however, that, when the documents, accompanying this transaction, were communicated by the States General to the Pensionary and magistrates of that city, the all'air was justified by them. And, it is probable, the arrangement would never have been known, but for the unlucky accident, by which Mr. Laurens' papers fell into the hands of the enemy. We shall observe, in this place, that the States General, in November 1780, disavowed, on the requisition of Sir Joseph Yorkc, the con- duct of the Pensionary, as having taken place without their kiiowledge ; but they refused to punish him, or any other person, concerned in the transaction. Tlieir High Mighti- nesses took that m 'h'ir, as they expressed it, ad referendum ; the nature of that process, in the Dutch government, can easily be guessed.* * The States General onlcretl Jones to leave the Tcxcl, after he liad been supplied with what seemed to be required by Imiiianity. Tlie English would not allow tlie Dutch to carry to its enemy ship timber, though it was not specified among the contrabands, by the treaty of 76 TREATY OF '83 WITH THE NETHERLANDS. When this secret proceeding became known to the Ameri- can Congress, they were at once satisfied of the feelings of, at least, a portion of the people of Holland. In those days, Amsterdam was, probably, the richest city in Europe ; the rate of interest was usually low ; and not only many foreign merchants, but even governments, were in the habit of o^ien- ing loans in that celebrated mart. Money could be procur- ed on more favourable terms, from the circumstance, that Amsterdam was just showing the first symptoms of its de- cline.'*' Great capitals had been accumulated ; but its trade having fallen olf, while the well known habits of industry, prudence and frugality of its merchants remained, there was a redundancy of money in the home market. Amsterdam, with the other cities of Holland and the Low Countries, was then beginning to feel the fatal influence of that power and competition, which has since deprived them of their colonies and carrying trade. The two epochs, to which we may assign the origin of this commercial superiority, are the trea- ties of 1763, and that of 1783 between America and England. Congress made no preparations before October 1779, to open a direct communication with the Low Countries. Mr. Laurens, of South Carolina, was, in that month, chosen, both to make a treaty of amity and commerce, and to negotiate a loan, not to exceed 10,000,000 dollars in amount, at a rate of interest, not to exceed G per cent. We have already said, that Mr. Laurens was taken, the next year, going to Holland. f Mr. Adams, who had previously gone to Europe, in the capacity of a commissioner for a general peace, was directed to proceed to Holland, on the business assigned to Mr. Laurens, and arrived there in the beginning of the year '81.| In the preceding autumn the same commissioner 1G74. Tlie English contended, tliat wood was included in tJiosc clau- ses of the subsequent treaties, wliicli forbid tJje Dutch to assist the enemies of Great IJritain with any article required in war. * M.icpItersoii'H Annals of 0)n)mcrce, vol. iii. f He was not liberated till '82, when he was exchanged for Lord Cornwallis. t Mr. Laurens, it is well known, was thrown into the Tower and confined many months. We have seen several of his letters, while TRRATT or '82 WITH THE KETHERT.ANTIS. 77 made a journey to Amsterdam from Paris for the purpose of procuring a loan, but he m'et with no encouragement. Se- veral letters, addressed to the Vresident of Congress from that city still exist, but we shell limit our extracts to two paragraphs, written in the month of December. " War is to a Dutchman the greatest of evils. Sir Joseph Yorke is so sensible of this, that he keeps alive a continual fear of it by memorials after memorials, each more affronting to any sovereign- ty of delicate notions of dignity than the former. I3y this means he keeps up the panic, and while this panic continues, I shall in England ; we shall extract only two ; — one, dated Tower of Lon- don, December 20, 1781, nnd written with n lead pencil. "Almost fif- teen months I have been closely confined, and inhumanly treated, and even now have not a prospect of relief. The treaty for exchange is abortive. There has been languor or neglect somewhere. If I want your attention, you will no longer delay the only speedy and efficacious means for my relief. Enter this, if you please, nnd what it miy pro- duc3, on your secret journal, nnd pardon the omission of ceremony. I am full of love and respect for you. Henry Laurens. A friend will trace the direction in ink." " Amsterdam, 30 March 1782. On the 31 December, being, as I had long been, in a state of extreme ill health, unable to rise from my bed, I was carried out of the Tower to the presence of the Lord Chief Justice of Engla I, nnd admitted to bail, to appear at the Court of King's P'mch on the first day of Easter Term, and not to depart thence without leave of the court. This measure, it seems, had been preconcerted and determined on without ray solicitation or knowledge, but I refused to enter into that or any other obligation, till I had previously made the following declaration to Mr. Chamberlain, solicitor of the treasury, in the hearing of divers officers of the court, the governor and deputy governor of the Tower, who attended, on the occasion, at Serjeants Inn. 'In order to ])re- vent or save trouble, as I do not know the nature of the obligation to be required of me, I think it necessory to premise, that I will do no act, that shall involve me in an acknowledgment of subjection to this realm, and that I save and reserve to myself all the rights and claims of a citizen of the United free and independent States of North Ameri- ca.' This solemn abjuration of the king in one of his own courts was going as far as decency would permit, and I was at that moment in so low and languishing a state, that I could express myself no further. None but God knows what I suffered, and I expected nothing less than to bo remanded immediately to the Tower." 78 TREATY OP '83 WITH THE NETHERLANDS. certainly have no success at all. No man dares engage for me— very few dare see rae." " The Dutch say that the English are acting the part of the sail- or, who, having quarrelled with three others as stout as himself, and got his hones broke, and his eyes beat out, in the squabble, challenged four more to light him at the same time, that he might have it in his power to make it up with all seven with /ionowr." Notwithstanding the " republic" was at this time at war with England, and a party to the armed neutrality, the pro- vinces do not appear to have participated in the eagerness of Amsterdam to recognise the independence of the United States. The States General were dilatory in all business, the forms of the government rendering despatch impossible. Nothing can proceed rapidly, where each member of a diet or assembly, not only holds in his own vote an absolute ne- gative, but, before he is permitted even to give that vote, he is obliged to report the whole matter under consideration to a separate legislative body, who take as much time as they think proper to examine, discuss, and deliberate, be- fore they send instructions to their delegate at the States General. There being seven distinct sovereign legislatures, Mr. Adams did not succeed till the autumn of '82 in obtain- ing from all the provinces their consent to the ratification of a treaty.^ Gueldcrland was the last state, that recognised * This treaty of amity and commerce was concluded on the 8th of October 1782 by Mr. Adams for America, and George Van Randwyck and seven others, deputies and plenipotentiaries, for the United Ne- therlands. Tlie treaty, consisting of 29 articles, places commerce on the footing of the most favoured nation. Tl»c 4tli article, respecting liberty of conscience is, we believe, peculiar to the treaties made by the U. ritates with the protcstant nations of the continent of Europe ; a similar provision will be found in the treaties with Sweden and Prussia. " Art. 4. There shall be an entire and perfect liberty of conscience allowed to the .subjects and inhabitants of each party, and to their families, and no one shall be molested in regard to his worship, pro- vided he submits, as to the public demonstration of it, to the laws of the country. Thcrt shall be given, moreover, liberty, when any sub- jects or inhabitanld of either party shall die in the territory of the TREATY or '82 WITH THE NETHERLANDS. 79 the independence, though others were quite early in declar- ing their sentiments. We sliall not sijcak, in detail, of the other, to bury tlmm in tlio nsuni biiryiiif? pincrs, or in decent and eon- vciiiont grounds to be aitpdintcd for tbiit purpoHc, ns occusion shall require ; and tlio dead l)odit's oftlmso wiio arc i)uried, shall not in any wise be molested. And the two contracting parties shall provide, each one in his jurisdiction, that their respective subjects and inhabi- tants may henceforward obtain the rcijuisito certilicates of deoths, in which they shall bo interested. " Art. 0. Citizens of each party may dispose of their effects, by will or otherwise, in the dominions of the other. "Art. 9. Citizens of either party allowed to nionago their own busi- ness, in the dominions of the other, &c. " Art. 10. A free trade was allowed to enemy's ports — a vessel, met at sea and delivering contrabands, was allowed to pass. "Art. 11. Free ships free goods; and goods in an enemy's vessel as in treaty of '78. " Art. 12. Goods, found in an enemy's ship, liable to bo confiscated, unless put on board, before declaration of war, or within six months thereafter. "Art. 10. In case of shipwreck, relief shall be afforded, and goods restored, if claimed within a year and a day, on payment of reasonable charges, &c. "Art. 18. In case of war, nine months allowed to citizens of cither party, residing in the dominions of the other, to sell and transport their effects. " Art. 19. Citizens of neither party shall take commissions, or letters of marque, from a prince or state witii whom the other is at war. "Art. 24. The liberty of navigation and commerce shall extend to all sorts of merchandises, excepting only those which arc distinguish- ed under the name of contraband, or merchandises prohibited, and under this denomination of contraband and merchandises prohibited, shall be comprehended only warlike stores and arms, as mortars, ar- tillery, with their artifices and appurtenances, fusils, pistols, bombs, grenades, gunpowder, salt petrc, sulphur, match, bullets and bulls, pikes, sabres, lances, halberds, casques, cuirasses, and other sorts of arms ; as also soldiers, horses, saddles and furniture for horses ; all other effects and merchandises not before specified expressly, and even all sorts of naval matters, however ])roper they may be for the construction and equipment of vessels of war, or for the manufacture of one or another sort of machines of war by land or sea, shall not be judged contraband, neither by the letter, nor according to any pre- ^{ IMAGE EVALUATION TEST TARGET (MT-3} 1.0 l.l 12.0 ■ 2.2 ■u ». Mil 14^0 m m m IIIIIJ4 , ^ 6" ► Hiotographic Sciences Corporation ^ ■£> 5V \ :\ 4 ;\ 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716)872-4503 y^* %^>^ ^^% 80 TREATY OF '82 WITH THE NETHERLANDS. treaty made on this occasion, as the leading provisions of it, touching the exercise of the right of search, contrabands and tended interpretation whatever, ought they, or can thoy be compre- hended under the notion of effects prohibited or contraband. So that all effects and merchandises, which are nut expressly before named, may, without any exception, and in perfect liberty, be transported by the subjects and inhabitants of both allies, from and to places belong- ing to the enemy ; excepting only the places which at the same time shall be besieged, blocked, or invested ; and those places only shall be held for such, which are surrounded nearly by some of the belligerent powers. "Art. 2G. If the vessels of the said subjects or inhabitants of either of the parties, sailing along the coasts or on the high seas, are met by a vessel of war, or privateer, or other armed vessel of the other party, the said vessels of war, privateers, or armed vessels, for avoiding all disorder, shall remain without the reach of cannon, but may send their boats on board the merchant vessel, which they shall meet in this manner, upon which they may not pass more than two or three men, to whom the master or commander shall exhibit his passport, contain- ing the property of tlie vessel, according to the form annexed to this treaty: and the vessel, after having exhibited such a passport, sea-let- ter, and other documents, shall be free to continue her voyage, so that it shall not be lawful to molest her, or search her in any manner, nor to give her chase, nor to force her to alter her course. " Art. 27. Commanders, &c. of public and private vessels of the United States, may engage American seamen in ports of the United Netherlands, and the same for Holland." The form of a passport, a certificate, and of a sea-letter was annex- ed to the treaty. On the same day, a convention was agreed on rela- tive to prizes and re-captures. "Art. 1. Re-captured vessels not having been twenty-four hours in possession of an enemy of either party, to be restored, on payment of one third salvage to the privateersmen. " Art. 2. Ile-capttired vessels, more than twenty-four hours in pos- session of an enemy, to be entire prizes to privateersmen. "Art. 3. Vessels of either party re-captured by public vessels of the other, to be restored, on payment of a thirtieth part, if 24 hours in possession of an enemy ; if longer, a tenth part. "Art. 5. Vessels of war and privateers, to be admitted, with their prizes, into the ports of both nations, if not inconsistent with the 22d article of the treaty of conuuercc." TRSATT OF '82 WITH THE NETHERLANDS. 81 pos- their 22d the privileges of the neutral flag do not differ from the original draught prepared bj Congress for all the commercial treaties. Indeed, we may remark in this place, that the commercial treaties, concluded by the United States with the powers of Europe, previous to the peace of Ghent, with the exception of England, contain the same general principles. The only additions on the score of neutral rights, made to the treaty of '78 with France, related to a definition of blockades, im- munity of vessels under convoy, and an improved modifica- tion in the right of search. Some peculiar provisions, as will be seen under their proper head, were inserted in the treaty with Prussia ; but, with this exception, we have had till 1815 but two classes of treaties — those with England, in which none of the neutral rights are recognised ; and those with the continent, in which all the principal neutral doctrines are secured by stipulation. Till the year just mentioned, no material change was made on the subject of commerce — it rested on the almost universal modern arrange- ment, and in the old diplomatic phrase, of « gentis amicissi- mtB.'*^ But latterly (beginning with England in 1815) another description of commercial treaties has been intro- duced — the basis is, reciprocity of duties and tonnage charges on importations, of the growth, produce and manufacture of the respective countries. This principle, extended either by convention or legislative enactment to the principal states in Europe, constitutes a new sera in the diplomacy of the United States, and in the commercial history of the world. All that part of public law, called conventional, is laid down, as it appears to us, by writers on the subject, with great strictness and precision, more so than the history of di- plomacy will, altogether, justify. The acts and practices of nations can alone serve as a guide in this business; and if we except the article of contrabands, the rights and duties of neutrals are obscurely defined in the treaties of the last century and a half; till, indeed, we reach the period of the first armed neutrality and American revolution war. From that date more uniformity of principles exists, as it respects treaties, concluded by one class of states.' Before the ap- VOL. I. 11 83 TREATY or ^82 WITH THE NETHERLANDS. i pearance, therefore, of this country, an uncommon variety will be found for the regulation of neutral rights ; and, strict- ly speaking, there had been no great neutral power in the world before the United States. Even in treaties of very exact language, a legitimate blockade is defined in a vague manner ; it is made an affair of construction, and to settle construction between nations will always be attended with extreme difficulties. We know not how the principle of " free ships, free goods" was excluded from the code. We have not looked very accurately into the collections ; but we have no doubt, that three-fourths of the commercial conven- tions since that of Westphalia in 1668, expressly recognise this doctrine ; and though it is found, we believe, in every treaty made by this country, exuept those with England, the American government, at an early period of its histo- ry, declared it was not one of the established principles of the commercial laws of nations.'*^ We have no disposition to undervalue the labour of writers on public law. On the contrary, they have rendered great services to mankind ; for it is, obviously, important, that nations should possess a code to regulate their conduct in regard to each other. We can- not reduce public or national law to the precision of munici- pal. This is not necessary. But we may fairly suppose, that a code so decidedly improved during the last century, is susceptible, still, of greater perfection. The rights of bel- ligerents are accurately defined ; so, that in truth, war, and the relations of nations in war, are now regulated by precise laws. This has been done by the progress of civilization ; and no one will deny, it has been highly beneficial. There is another part of this code still in a confused and unsatisfac- tory condition ; — an adjustment of the rights and duties of neutrals. There have been constant difficulties on the sub- ject of blockades, contrabands, and the right of search ; but none of them are at all new ; they occurred with great se- verity in the application in the beginning of the last century. In the wars that have just ended, in which this country * See Mr. Jefferson's letter of July 24, 1793. TREATY or *82 WITH THE NETHERLANDS. 83 finally took a part, and which were, in some respects, mari- time, not a single principle, beneficial to the neutral, has been secured. In all the treaties made in the celebrat- ed years of 1814, 1816, treaties, that appear to guaranty the repose of the world for centuries, we find no allusion to the neutral. And it is, truly, a most discouraging circum- stance, how completely all armed neutralities have been dis- solved, and how entirely the obligation difiierent states (this country among others) have entered into, to establish a con- vention for the protection of the neutral, have been forgot- ten on the return of peace. Still, he should not be in de- spair. The great improvements, taking place in society and in the intercourse of nations, will probably in time reach that portion of the code, that relates to him. There has been in Europe, for three centuries, in a small, compact space, a remarkable collection and concentration of powerful nations ; — the frontiers of the principal, laying so close to each other, that they had become rivals rather in arms than in commerce. Even the small states, forming a part of the balance of power, were drawn by the attraction of the larger bodies from a neutral position. Before the armed neutrality of the North, a scheme dictated by person- al ambition and desire of aggrandizement, (partaking entirely of a political character, and as far as Russia and France were concerned) adopted for any other purpose than the benefit of neutrals, the period that may be selected, as most mark- ed by favourable dispositions in regard to neutrals, is, proba- bly, that of the peace and treaties of Utrecht. It is most likely that the balance of power was then more fairly and nicely adjusted ; — it may, also, be the true date of the be- ginning of British commercial supremacy, though it was not very apparent till the peace of 1763. At any rate, as that supremacy rose, the hopes of the neutral have fallen. Since the time of Charles the V., all Europe has been occupied with a consideration of the balance of power, applied to the land, but a proper attention does not appear to have been paid to the unequal manner, in which power may be dis- tributed on the ocean. To the maritime superiority of Great $i TREATY OF '82 WITH THE NETHERLANDS. Britain, no effective and steady resistance has been oppos- ed for one hundred years, except by this country. The true fountain and strength of that resistance consists in the distant situation of the United States, — the habits and character of the people, — and the undoubted interest we have in maintaining neutrality. At the late great division . of spoil in Europe, England was permitted to appropriate to her own use the best islands and commercial marts in every sea, while the other powers were busy in seeking indemni- ties, reclaiming statues and pictures, and rounding and squar- ing their territories. The war with England, and the movements in the British House of Commons in the beginning of the summer of '82, finally induced the provinces, not only to make a treaty, but Mr. Adams was enabled, under 'hose favourable auspices to negotiate a loan with certain merchants of Amsterdam, at first (in September 1782) for ^' 5,000,000 guilders at 5 per cent, redeemable in ten years ; — 2,000,000 at 4 per cent, in '85; and, again, 1,000,000 in 1787 at 5 per cent. The price of these loans was, probably higher than was paid by other nations ; but America did not enter into the mar- ket of Amsterdam with all the advantages of a well estab- lished government. When the first loan was contracted in September '82, very little doubt could exist but that Ameri- ca would be able ultimately to maintain her independence against the claims of the mother country. But this was not sufficient for the European money lender. It was necessary to satisfy him, that the confederacy of '74, whose pledge was his only security, would remain united, would not sepa- rate into thirteen independent governments, neither willing nor able to execute their engagements. The debts, con- tracted by the United States in Europe, during the revolu- tion, were all honourably paid ; but the adoption of the con- stitution of '89, and the establishment of a treasury depart- ment, contributed in no smd! degree to this happy result. * In November 1781, the French king borrowed, for the United States, of the States General, 5,000,000 florins, at 4 per cent. TRSATY or *82 WITH THB BnBTIIXRLANDS. 85 The pecuniarj embarrassments under which the confederacy- laboured, both as it respects the foreign and domestic debt, constituted, in reality, one of the principal arguments in fa- vour of the present union of the States ; and the Dutch as well as French creditor is much indebted to that change in the concerns of the country for the speedy and exact pay- ment of his demands. As the United Provinces were the second state to acknow- ledge the independence of this country, so they were the se- cond to send a minister plenipotentiary to the Congress at Philadelphia. This was done with great promptitude. The person appointed was P. T. Van Berckel. He arrived in America in the autumn of '83, and in October of the same year was admitted, in the form prescribed, to a public au- dience. He addressed a speech to Congress on the occa- sion in the French language. A greater interest than com- mon is justly attached to his sentiments, as there is some slight resemblance in the history of the Dutch and American revolutions. • . ; v- ^V'; i; ,.. ^5 '''\ .^rt .-J. '.V'. . , ■^,'. ■y:«'rf f.. JnitQd ■ ■' '■ .^- ^^: a^f'l ^j-i... .; . "-^fi ; i- '.."■'■.. ■■'] .i'Si •;*;. ,.,■ > , :-: i^^i-^:ijt:mS^i> ■!■■-.■ -t, ',»*■? >.■'; '. ' ' r '. \ . ? ■ .: i4 1' • ,'*' ->.i!'i..Mi--i..-.- .fiii t.i '"s,) ■, r , ' ,,J i . •S'h'-qiiik iKih^if: \- i'- ■"■ -'■ : -'' .-r --': .^l^^i-nd f-'l. V':; — - ; ., I _ '•'■'"'. ' l;i)-*-i'**»i» ■;'i:;,-. ;. ■. si '-i l :._•.: li . . ■ '■', ^ ■' ■ ' ■...-: ' / ctrt w ( 86 ) v. , t'\ i .1 .»;<'!■ ' e^ :|,Uti,? ;«i?? CHAPTER IV. ' ■ , i ' 1 I* i^^: ' if I "., r^i^*;■•J ^.r?K-" TREATY OF 17a3 WITH GREAT BRITAIN. Lord J^orth attempts a Peace — America early conquered every thing she sought — Members of Parliament see Franklin privately^Minit- positions" into the House of Commons, he declared it to be the inten- tion of government to send a commission to America, to treat with the Congress, to grant pardons and immunities, to re- store to the colonies their ancient charters, to exempt them from taxation, and not to require them to renounce their in- dependence, till the treaty had been ratified by the king and parliament. — A writer of the day observes : " A dull, melancholy silence succeeded to the speech, made by Lord North on this occasion. It hud been heard with profound I. I- TRRATY OF *83 WITH ENGLAND. •ttentioDf but without a single mark of approbation to any part from any description of men, or any particular roan in the house. Astonishment, dejection and fear overclouded the whole assembly. Although the minister had declared that the sentiments he express' ed that day, had been those which he always entertained, it is cer- tain that few or none had understood him in that mauner ; and he had been represented to the nation at large as the person in it the most tenacious of those parliamentary rights, which he now pro- posed to resign, and the most remote from the submissions, which he now proposed to make." .Mr. Fox, who followed Lord North in the debate, congra- tulated the public on the conversion of the minister, and his own party on having gained so powerful an auxiliary. These terms, in fact, contained all the stipulations the first Con- gress, assembled in Philadelphia in 1774, proposed to ac- complish. Thus America had, in reality, conquered at this early day every thing for which she originally took up arms. The declaration of Congress of July 4th, '76 constituted no part of the original requisitions or grievances of this country, for the war, in the outset, was certainly not undertaken for independence. It appears, also, that propositions were made about this time to Dr. Franklin, the American commissioner, by Mr. William Pultney, a member of parliament, who saw him at Paris, under the assumed name of Williams. The terms did not differ from those, with which Lord North proposed to invest the British commissioners. Another member of par- liament, a Mr. Chapman, had a conversation with Dr. Frank- lin on the same subject. This gentleman was at great pains to collect information touching a peace ; and he made such proposals, in relation to independence and commercial privi- leges, as were then fashionable in England. The American commissioners in Europe, at that period, had no power to treat with Great Britain ; but Dr. Franklin informed Mr. Pultney, that, in his opinion, America would not make a peace, in which her independence was not formally recog- nized. England was anxious to separate the colonies from France, TllfJATY OF '83 WITH RNOLANT). and to re-establish licr dominion over them ; but there were few people in that country in 1778, disposed entirely to re- sign the control of their ancient possessions. The ministry resolved never to acknowledge the celebrated act of the American Congress of July '7G ; from every other opinion and resolution they had been gradually driven by the goad- ings of the opposition, and calamities of every description in the course of the war. Peace the Americans could have had at any moment after *78 ; — every grievance would have been redressed ; — the mother country required no other condition from the colonies, than that they should subject themselves to the navigation act, or should enter into such commercial arrangements, as would have given to the trade of Great Britain superior advantages to that of other nations. The power of parliament was decreed absolute and unlimit- ed, but the government was willing to consign, in a treaty, limitations and exceptions to it in favour of America. But, on the other hand, the declaration of independence added a new feature to the war ; compressed the dispute within nar- row limits, and reduced it to a very simple proposition. The intricate questions of taxation and representation, of in- ternal and external taxation, of regulating commerce and of raising revenue, of admitting the prerogative of the crown, but denying the supremacy of parliament, questions some- what metaphysical and not always perfectly distinct in their application, were absorbed by the vast stipulation of inde- pendence. This was the only basis on which America, at the period when the commission was appointed, would treat for peace. But the mother country was not yet prepared for that concession, nor did the ministry exist, that would have had the courage to have submitted to that act of humi- liation. Lord Chatham, himself, declared in debate, in De- cember '77, that he was an avowed enemy to American in- dependence ; — he contended for a whig connexion between the two countries, " founded in a constitutional dependence and subordination." To this opinion, generally entertained by many leading members of the opposition, Lord Chatham as often alluded in his later speeches on the American ques- VOL, I. 12 90 TREATY or '83 WITH ENGLAND. tion, as he had done to the supremacy of parliament in his earlier ones : " My Lords," ho snid in his last speech, on the 7th April *78, ** 1 rejoice that the grave hns not closed upon me, that I am ttili alive to liA up my voice against the dismemberment of this ancient and most noble monarchy. Pressed down as I am by the hand of infirmity, I am little able to assist my country in this most perilous conjuncture; but, my lords, while I have sense and memory, I will never consent to deprive the royal oflspring of the house of Bruns- wick, the heirs of the Princess Sophia, of their fairest inheritance. Where is the man, that will dare to advise such a measure. My lor«' , his majesty succeeded to an empire as great in extent, as its reputation was unsullied. Shall wc tarnish the lustre of this nation by an ignominious surrender of its rights and fairest possessions ? Shall this great kingdom, that has survived, whole and entire, the Danish depredations, the Scottish inroads, and the Norman con- quest, that has stood the threatened invasion of the Spanish armV da, now fall prostrate before the house of Bourbon ? Surely, my lords, this nation is no longer what it was ! Shall such a people, that, seventeen years ago, was the terror of the world, now stoop 80 low as to tell its ancient inveterate enemy, — take all we have, only give us peace ? It is impossible." Indeed, a motion made in the House of Commons by Mr. Powys, in April '78, to authorize the commissioners, employ- ed to treat with America, to declare the independence of that country, though supported by Mr. Fox and Mr. Burke, seems to have been generally discountenanced, and was final- ly rejected without a division. Commissioners were, how- ever, appointed under Lord North's act, who proceeded to America, but the Congress refused to treat with them. This is the first and only attempt, of which any traces now remain, made by Lord North's administration for a cessation of hostilities. They held to the terms, proposed in the com- mission of February '78, with a zeal and resolution, that finally proved fatal to them. Some in'erest may be attach- ed to the first sincere endeavour of the mother country to conclude a peace with the United States ; an effort, it is true^ not accompanied with the least success, nor can it in TREATY or *83 WITn ENOLAND. 01 any way be connected with the treaty of '83 ; but it belongs to the diplomatic history of the period, and is worthy of at- tention as illustrating the decided progress the " rebellion in the Massachusetts," as the first lord of the treasury was in the habit of calling it, had already made in the course of four years. It will not escape observation, that these terms, if embraced, substantially amounted to independence, or very speedily must have resulted in that state of things. In 1781 a proposition was made by the imperial courts of Russia and Austria, to arrange in a Congress, under their mediation, the terms of a general peace. This business oc- cupied the attention of the European courts during several months. France, never satisfied with the manner in which America, on her part, conducted the war, probably disap- pointed in the advantages she expected to reap from the contest, and already embarrassed to a great degree in her own finances, was anxious in the extreme for peace, and took great pains to render the mediation effectual. Though, se- parate from the determination of the English government, not to bring the affair of her colonies before a European Congress, (a process attempted in our time with equal ill success in reference to another part of the American conti- nent) insuperable difficulties arose in relation to the terms that should serve as the basis of the mediation, and the man- ner in which the representatives of America should appear. We shall not extract the articles of mediation offered by the imperial courts, as they merely propose in the usual form to guaranty a general pacification ; but the terms were obvi- ously inadmissible, as the independence of the United States was not made the basis of the mediation. Austria and Rus- sia were not much disposed to acknowledge at that time the independence. — An extract of a letter from the Marquis de Verac, French Minister at St. Petersburg, to Mr. Dana, American Commissioner, who had consulted him on the pro- priety of making known the credentials, with which he was intrusted for that court, will leave little doubt on that head. The date of the letter is September 1781 : *' The mediating couila understand hy this (the articles) that TREATY OF '83 WITH ENGLAND. )f your deputies shall treat singly with the English irinisters, as they have already treated in America with the commissioners in 1778. That the conclusion of their negotiation shall teach the other pow- ers, upon what footing they are to be regarded, and that their pub- lic character shall be acknowledged without diiBcnlty from the moment when the English^ themselves, shall no longer oppose it. It is the design of the mediating powers to avoid committing them- selves, by acknowledging the independence of the United States, till England herself shall have pronounced such an acknowledg- ment." . It will not be necessary to follow Lord North's adminis- tration through the various debates, that took place from the time of his conciliatory bills to the fatal resolution moved in February '82, by General Conway. During that interval the revolution made no progress in Parliament ; the opposi- tion did not gain a innn from the ministry for three years ; on the contrary, they appear to have been convinced, that the question of peace or war, however much discussed in Parliament, was not there to be decided. America, itself, was the scene of action ; and the event proved that, in that country, the time and terms of the treaty were to bt dictat- ed. Either the death of Lord Chatham had chilled a d en- feebled the ardour and strength of opposition, or the idig- nation of the nation was roused at the alliance of the T lited States with their ancient enemy. It was said by a f rson, who interested himself infinitely in the concerns of A lerica at that time, " that England would fight for a straw o the last man and the last shilling, rather tiian be dictatcu ~ by France ;" — a declaration any person will readily believe, at all acquainted with the history of that country'. One party, perhaps, was desperate and indifferent, and the other ex- hausted and disgusted. At least, it is certain that, till the capture of Lord Cornwallis, less interest had been manifest- ed for the affairs and fate of the colonies from the winter of '79 to. that of '82 than in the preceding years. ^. We shall now recite, with some detail, the circumstances that immediately preceded and attended the celebrated peace, by which the independence of this country was 111! ■lii TREATY OF '83 WITH ENGLAND. 9a acknowledged. This is the first effort, recorded in hlstorj, of a proud and powerful government to meet, in negotiation, revolted and aspiring colonics. And we may add, the first instance where a parent state has proposed and consented to arrange, in a solemn instrument, even after a bloody contest, the terms of a solid and sincere reparation — to create, by the simple process of a treaty, made in the usual forms, another great and independent nation ; — an event probably as unexpected to the European courts, as was the discovery of the continent, where that nation was founded, and from which it took its name. A new state was added to the ci- vilized family of mankind with a government organized and administered upon a plan, unknown and undreamt of either in history or speculation, the model and the original of those civil and political institutions, now covering the vast conti- nent of North and South America. Very little change had taken place in the composition of the ministry since the commencement of hostilities ; but to- wards the close of the war, a diversity of opinion existed on the subject of independence. Lord North was probably sa- tisfied that it could not be withheld ; his speeches betray the unsettled state of his mind — the agony of a minister struggling to disguise or repress opinions, it was both his duty and his desire not to entertain or express, but which were rapidly forcing themselves upon his conviction. On the other hand, Lord George Germaine declared, in the very last debate, that, sooner than acknowledge the independence, he would retire from the ministry. And Mr. Dundas went even so far as to say, that the person, who should propose an avowal of it, would be guilty of a crime little short of high treason. No peace could be expected from this admi- nistration. They maintained their places upon the simple tenure of not subscribing to the single condition on which a peace could be made ; and while a prospect remained of re- gaining the colonies, the great majorities, with which the ministry began the war, remained faithful to them. The 22d February 1782, General Conway made a first motion in the Commons for putting an end to the American war. This 94 TREATY OF *83 WITH ENGLAND. motion, after a debate that lasted till two o'clock in the morning, was lost by the majority of a single vote, 193 to 194 ; but as the question had been decided by so slight a majority, Mr. Fox immediately gave notice, that the motion would be shortly renewed. Accordingly, on the 27th of the same month, a motion similar in substance was made by the same member, and at a very late hour this resolution was adopted by a vote of 234 to 215, leaving ministers in a mi- nority of nineteen. — The administration had suffered itself to be conquered in America ; but the triumph of its adver- saries at home was a tardy and faint one. The House of Commons relinquished the contest with evident reluctance. Indeed, we shall shortly see, that these votes did not at all indicate the feelings of that body on the subject of independ- ence, and that a portion of the members still believed, the colonies would be reannexed to the empire. Lord North was abandoned, because it was out of the question to conti- nue the war ; but this did not necessarily lead, in the minds of all, to the further immediate consequence — the acknow- ledgment of independence. The next Cabinet, even formed as it was on the ruins of the war ministry, refused to recog- nise the act of July '76 ; it was dissolved partly on account of this circumstance, and partly on account of the death of the Marquis of Rockingham. Mr. Fox, one of the Secre- taries of State, withdrew when it was ascertained that a prin- cipal condition on which it had been composed, the inde- pendence of America, was disavowed by a majority of the Cabinet. It would not be, therefore, quite correct to say, that the vote of February 27th, though it settled, as far as England was concerned, the question of war, decided, in the fiame view, that of independence. Towards the end of March '82, the new administration was formed, and was called the Rockingham, from the name of the nobleman at the head of it. Mr. Fox and Lord Shelburne were the principal Secretaries of State. Lord Cholmondely, a young English nobleman returning home through France from Italy, about this time, paid a visit, pro- bably at the suggestion of individuals in power in England, TB£ATT OF '83 WITH ENGLAND. 95 to Dr. Franklin, who, on the representations made by him, took that opportunity to write a private letter to the noble- man at the head of the foreign department, with whom he had formerly been acquainted. " Lord Cholmondely having kindly offered to take aletter from me to your Lordship, I embrace the opportanity of assuring the con- tinuance of my ancient respect for your talents and virtues ; and of congratulating you on the returning good disposition of your country in favour of America, which appears in the late resolutions of the Commons. I am persuaded it will have good effects. I hope it will tend to produce a general peace, which I am sure your Lordship, with all good men, desires, which I wish to see before I die, and to which I shall with infinite pleasure contribute every thing in my power. Your friends, the Abbe Morellet and Madam Helvetius are well. You have made the latter very happy by your present of gooseberry bushes, which arrived in five days in excel- lent order." " London, 6 April 1782. " I have been favoured with your letter, and am much obliged by your remembrance. I find myself returned nearly to the same situation, which you remember me to have occupied nineteen years ago, and should be very glau to talk to you as I did then, and after- wards in 1767, upon the means of promoting the happiness of mankind, a subject much more agreeable to my nature than the best concerted plans for spreading misery and destruction. 1 have had a high opinion of the compass of your mind and of your foresight. I have often been beholden to both, and shall be glad to be so again, as far as it is compatible with your situation. Your letter, discovering the same disposition, has made me send to yoa Mr. Oswald. I have had a longer acquaintance with him, than even I have had the pleasure to have with you. I believe him an honest man, and, after consulting some of our common friends, I have thought him the fittest for the purpose. He is a practical man and conversant in those negotiations, which are most interesting to mankind. This has made me prefer him to any of our speculative friends, or to any person of higher rank. He is fully apprized of my mind, and you may give full credit to every thing he assures you of. At the same time, if any other channel occurs to you, I am ready to embrace it. I wish to retain the same simplicity and TREATY OF '83 WITH ENGLAND. good faith which subsisted betiveeD us in transactions of less im* porlance. . J-.'^-,•:.'^^.->'a-.■ ;•,:/.. ..-'-iMi j « SHELBURNE." ' I .;'.! In the beginning of April, Mr. Oswald met Dr. Franklin in Paris, then the only commissioner there, in a character partly official, but principally for the purpose of obtaining information. He was not authorized to propose terms of peace, though he intimated that the independence of the colonies would be agreed to. We find, however, this sug- gestion clogged with a condition, that England should be placed by France in the state of 1763. Mr. Oswald made one or two journeys between Paris and London, but nothing was accomplished. In April Mr. Grenville was sent by Mr. Fox to Paris. When he first arrived, it was supposed he was to engage in a negotiation for a general peace. He had various conversations with Dr. Franklin and M. de Ver- gennes ; but, when his powers were produced, they were full in regard to France, but contained no mention of the allies. He said, his power was a copy of an official form in the office, and that America was doubtless omitted by acci- dent. He informed M. de Vergennes, that his instructions from Mr. Fox directed him to acknowledge the indepen- dence, previous to the commencement of a treaty, but when desired to put this declaration in writing, he wrote, " the king was disposed." The British ministry, though soon dissolved by the death of the Marquis of Rockingham, were early distracted by a want of unanimity, and early lost the confidence of the peo- ple. The negotiation with America during May and June made no progress ; — Mr. Oswald was the agent of Lord Shelburne, known to be opposed to the acknowledgment, and Mr. Grenville, of Mr. Fox. This ministry had been forced upon the king by a vote of the House of Commons. The hopes of regaining America were again excited by the decisive victory of Lord Rodney in the West Indies, and the unexpected successes of Sir Eyre Coote against Hyder All in the East ; and, if credit may be given to the reports TREATY OF '83 WITH ENGLAND. of the day, the government looked forward with some con- fidence to the making a separate peace with Congress by means of Sir Guy Carleton, who had been appointed to the command of the forces in Noith America. These circum- stances combined to render this attempt at peace abortive. The American commissioners were at this time entirely in despair. Mr. Adams, writing from the Hague, June 13, '82, observes, "I cannot see a probability that the English will ever make peace, until their finances are ruined, and such distress brought upon them, as will work up their par- ties into a civil war." The reader will, perhaps, feel some interest in having a version put into his hands by the French Court of the state of the negotiation in the summer of '82, though he may well entertain some doubt of the full justice of the intima- tions in regard to Lord Shelburne. " Dec. 30, 1782. The Minister of France came this day, agreea- ble to appointment, to the oftice for foreign affairs, and read to Mr. Livingston a letter from the Count de Vergennes to him, dated the 12th of August last, which contiunedin substance — That the nego- tiation began by Mr. Grenville and Mr. Oswald were interrupted by the resignation of Mr. Fox. That previous to that, the King of England appeared disposed to acknowledge the independence of America in express terms, without making it a condition of the peace. That Mr. Grenville encouraged them to hope, that this object would be rendered complete by an act of Parliament. That they looked in vain for this act till they were apprized of the resignation of Mr. Fo^. That the differences, which arose between him and Lord Shelburne, led them to .suppose that the design of the first was to recognise the independence of Amerca, and treat for a general peace upon fair and honourable terms. That Lord Shelburne's was, on the contrar}', to endeavour to excite distrust, and, particularly, to endeavour to mislead the Americans. That in pursuance of this system in the month of June last, at the very time that they opened the treaty in Europe, he proposed to offer the most advantageous terms to America upon condition, that the Americans laid down their arms and left France to settle the dispute ulone. This insidious conduct was pursued during Mr. GrenviUe's vol.. I. 13 98 TREATY OF '83 WITH ENGLAND. negotiation. That Mr. Fox's resignation suspended the negotiation, though the new administration declared that this event should occasion no change of measures. That the Court of France ex- pected the effect of this declaration, when a commission was expedited to Mr. Oswald to treat with the American Plenipotentia- ries, and another to authorize Mr. Fitzhcrbert to i^esume the nego- tiation, begun by Mr. Grenville. That he had presented his credentials the 4th instant. That Mr. Oswald had yet received only a copy of his, owing to the Chancellor's absence. That Mr. Fitzherbert had returned the answer of Great I3ritain to the coun- ter proposition given by France. That this contains full evidence of the understanding of Lord Shelburne's conduct, since, instead of making the independence of America a separate object, it pro- poses it as a condition and as the price of peace, and adds, that every other circumstance should be placed upon the basis of 1763. He observes, that the Chevalier de la Luzerne will judge from this, that they affected much surprise at the counter propositions, and that they did not assent to them. — Neither on the other hand, have they yet refused them, but confine themselves to demanding explanations. That this was the then state of their negotiations. That Mr. Oswald had presented his commission, to which Mr. Franklin and Mr. Jay had yet given no reply, suspending it till they knew his (the Count de V^ergennes) sentiments. That as yet he had formed no opinion, waiting the result of a conference, which he was to have the next day with those Ministers. That the com- mission was in the usual form, but speaks of the Americans as colonies, without naming them as rebels, or asserting any claims upon them. That he did not, for his part, believe that Lord Shel- burne would negotiate a general peace sincerely, till he loses all hopes of sowing dissensions and treating separately. That they ivere convinced, that neither France or Spain were to be deceived, and that he (the Count de Vergennes) entertained the same senti- ments vvith respect to the Americans. But that the British Minis- try, deceiving themselves, may continue to tempt them till a peace is signed." — " He then proceeds to inform the Minister, that while the British had set on foot a direct negotiation, the Imperial Court renewed their instances with that of London to engage them to accept their mediation. That this gave birth to an answer, in which his Britannic Majesty, without taking notice of the ncgotia- TREATY OF '83 WITH EWOLAND. 99 tion begun at Paris, declared that he was ready to receive through them every pacific overture, and even to admit the Dutch and the Americans to the negotiations. This answer was dated the 29th April, when Mr. Oswald was already in Paris. That they continued their negotiations and sent Mr. Grenville powers, which were dated the 21 May. That they did not conceal this from the Imperial Courts, but pretended that it was at the instance of France. That this false accusation, and, above all, the fear of seeing the mediation vanish, had engaged the Imperial Courts to communicate to the Courts of Versailles and Madrid, the last memorial of the Court of London, and to exhort them to establish a negotiation under their auspices. That it was easy to refute the unskilful accusation of the British, which he (the Count de Vergennes) thinks they (the Court of France) have done with success. That the answer is transmitted. That they had determined, without rejecting the mediation, to pursue the direct negotiation as long as it might be convenient to the Court of London. That he had not seen the answer of the British, which could not, however, be very satisfactory, since they have expedited the commission to Mr. Fitzherbert and Mr. Oswald. That he (the Count de Vergennes) was ignorant of the part, that the Imperial Courts would take up on their declinatory answer.'' ;, .? It was not till September of the same year, under Lord Shelburne's administration, formed upon a dissolution of the Rockingham, that the British government took a decisive and sincere step to make peace, and authorized their com- missioner, Mr. Oswald, at Paris, to acknowledge the inde- pendence of the colonies. The following are the words of this instruction : " In case you find the American commissioners are not at liberty to treat on any terms short of independence, you are to declare to them, that you have authority to make that concession. Our ar- dent wish for peace disposing us to purchase it at the price ot conceding the complete Independence of the thirteen colonies, viz. : New-Hampshire, Massachusetts Bay, Rhode-Island, Conncc ticut, New-York, New-Jersey, Pennsylvania, the three lower counties in Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia in North America." We have hitherto confined this relation entirely to the i| a i 100 TREATY OF '83 WITH ENGLAND. proceedings of the British government; for it always de- pended upon England to make peace; America could not be desirous of continuing tho war ; but she had declared her independence, and was able to maintain it. There were, therefore, only two conditions upon which she could consent to a cessation of hostilities ; either that the king's fleets and armies should he withdrawn, or the independence recognis- ed. As early as August '79, Congress prepared a draught of instructions, and, in September following, appointed John Adams, of Massachusetts, a commissioner to make a treaty of peace, with subsequent instructions to conclude one of commerce with Great Britain. The commissioner was par- ticularly directed to make it, " a preliminary article to every negotiation, that Great Britain shall agree to treat with the United States as sovereign, free and independent." Mr. Adams went without delay to Europe, being subsequently appointed to the Hague.* But he was not authorized to * Mr. Adams, after his arrival in Paris, had some corrcspondcnco with M. de Vergennes, concerning tlie propriety of making his ofHcial character public. We give two of the letters. " Paris Hotel He Valiois Rue Richelieu, Feb. 12, 1780. " To Hia Excellency the Count De Vergennes : . "Having obtained permission from your excellency yesterday, when I did myself the honor to wait on you at Versailles, to write on the subject of my misfortune, I have now the honour to acquaint you, that on the twenty-ninth day of September last the Congress of the United States of America did me the honour to elect me their Minister Pleni- potentiary to negotiate a peace with Great Britain, and, also, to nego- tiate a treaty of commerce with that kingdom, and the Honourable Francis Dana, Esq. a member of Congress and of the Council of Massachusetts Bay, Secretary to both Commissions. As I vyns not at Congress, when this transaction took place, I am not able to inform your excellency very particularly of the rise and progress of it. But from conversation with gentlemen at Boston, who were members of Congress, and from private letters, I learnt that it wasjiot the result of any sudden deliberation, or the fruit of any particular event of war, i)rosperous or adverse, but a measure that had been more than a year under consideration, and finally agreed upon this principle, that as it was uncertain at wiiat time the belligerent powers might be dis- posed to treat of peace, which could not be concluded without a Min- thkatt of '83 vrirn KwoLAitn. 101 make propositions to the court of St. James, and there is no ground for beUcvin*; that America, at any time, during the war, and after the act of July '7G, made any attempt at ister from tho United Statcfl, it would save n great deal of time for this power to have a Aliiiister in Eiiropo fully nutliori/od to treat, and in concert with Ministers from the other powers at war, conclude a peace with Great Britain and a treaty of coniincrce, consistent with tliat already niado with his most Christian Majesty, and such others, as might be made with other [towers. 1 am persuaded, it is the inten- tion of my constituents, and of all America, and I am sure it is my own determination, to take no step of consequence in pursuance of my commissions without consulting his Majesty's Ministers, and an various conjectures have been, and may bo made, concerning the na- ture of my appointment and powers, and as it may be expected by some, that 1 should take some measures for announcing these to the public, or, at least, to the Court of London, I beg the favour of your excellency's opinion and advice tipon these (piestions. " 1. Whether in the present circumstances of things, it is prudent in me to acquaint the British Ministry, that I have arrived here, and have such commissions, and that I shall be ready to treat, whenever the belligerent powers shall be inclined to treat. "2. Whether it is prudent in me to publish in any manner more than the journals of Congress may have already done, the nature of my commission. k . "3. Or whether to remain on the reserve, as I hitherto have done, since my arrival in Europe. '' If any propositions should be made to me, directly or indirectly from the British Ministry, I shall not fail to comnninicato them, with- out loss of time, to your excellency, and I beg the favour of your ex- cellency, as I am the only person in Europe, who has authority to treat of peace, that if any propositions on the part of Great Britain should be made to his Majesty's Ministers, that they may be commu- nicated to mc, at least, as far as they may relate to the interest of tho United States. Although 1 am not confined by my commissions nor instructions, nor by any intimations from Congress to reside in one place in Europe more than another, yet my own inclination, as well as those of the ))ublic, would be most gratified, and the public service most promoted by my residing here. I must, therefore, request his Majesty's protection and permission to reside in this kingdom for some time, with or without assuming any public character, as your excel- lency may think most advisable. ".lOIlN ADAMS." ' > 102 TREATY OF '83 WITH ENGLAND. negotiation, ci'.hci directly or by means of her allies. At the period of (he interviews of Mr. Pultncy with Dr. Frank- lin at Paris, Congress had neither appointed a commissioner nor prepared instructions. We have not been able, in the secret journals of Congress, to discover the slightest intima- tion of a desire to abandon the ground of the instructions of August ^19.* America at all times rejected with great " Versailles, Feb. 24, 1780. "1 have received. Sir, the letter wiiicli you liuve done me the honour to write me the lOth of this month. Your full powers, of which you hnve been pleased to send me a copy, are perfectly conformable to what M. Gerard has written me about them, and they leave us noth- ing to wish for as to the form or matter. I think there will be some unfitness in informing the public of the principal object of your mis- sion. I mean the future pacification. It will, even, he announced in the Gazette of France, when it will mention your presentation to the kin£^ and royal family, and you will be at liberty to give your eventual character a greater publicity, by having it published in the Dutch papers. I could only wish, that you would be so kind as to commu- nicate the article to me, before you transmit it. With regard to the full powers, which authorize you to negotiate a treaty of commerce with the Court of London, I think it will be prudent not to communi- cate them to any body whatever, and to take every necessary precau- tion, that the British may not have a premature knowledge of them. You will no doubt easily feel the motives, which induces me to advise ^ou to take this precaution, and it would be needless to expose them. " With regard to your instructions. Sir, I am certain they have for their certain and invariable basis the treaties subsisting between the King and the United States. M. Gerard has assured the King of it in the most positive manner, and his Majesty does more justice to the uprightness of Congress and to the stability of the sentiments, which they have hitherto manifested, than to have entertained or ever to entertain the least doubt on this subject. This way of thinking will convince you, Sir, that wc have no need of seeing your instructions, to appreciate properly the principles and dispositions of Congress towards Great Britain. «DE VERGENNES." • In July '79 the French Minister urged to Congress the necessity or rather expediency of making peace without a formal acknowledg- ment of the iudepcndcncc. And June 9, 1781, Congress adopted a im TREATY OF *83 WITH ENGLAND. 103 emphasis even the project of a short truce. This was con- sidered highly dangerous to the liberties of the country, though a favourite notion with many of her best friends in England. In the instructions of October '80, and of June '81, the same direction is inserted in relation to the acknow- ledgment. The commission, under which the preliminaries of the treaty were actually concluded, was issued by Con- gress in June '81. It empowered " John Adam!*, Benjamin Franklin, John Jay, Henry Laurens, and Thomas JciTcrson, or the mnjority of them, or such of them ns may assemble, or in case of the death, absence, indisposition, or other impediment of the others, to any one of them, full power and authority, general and special commission to repair to such place, as may be fixed upon for opening the negotiations for peace, and there for us, and in our name, to confer, treat, agree and conclude with the ambassadors, commissioners and plenipoten- tiaries of the princes and states, whom it may concern, vested with equal powers, relating to the establishment of peace, and whatso- ever shall be agreed and concluded for us, and in our name, to sign, and thereupon make a treaty or trcadcs, and to transact every thing that msiy be necessary for completing, securing and strength- ening the great work of pacification, in as ample form, and with the same effect, as if we were personally present and acted therein." All the commissioners, except Mr. Jefferson, were pre- sent during some part of the discussions, being in Europe at the time the meeting was appointed."*^ Mr. Jefferson was in America, and did not leave it, as a report reached the gov- ernment that the preliminaries were already signed. Mr. Oswald's commission in proper form, from which an extract was given on a preceding page, was not issued till the 21st of September. Some delay had taken place in consequence of objections made by one of the American commissioners resolution, (with only tlirec noes) authorizing the Commissioners to make a peace without a d to llie Count, it would lie descendinor from llu ground onodepcndoiKC, to treut under the name of colonies, lie rep'jrd, names :sl£(fiify nothing. The king of Great Britain staling himstl/ king of France, w«s no obstacle to tlie king of France'i* trcatlnj^ witii him : — that nn ncknowledgment of Independence, Instead of preceding, must, in the natural course of tilings, be the elTcct of tlie treaty. The Count turned to Dr- Franklin, and asked him, what he tliought of the matter; he said, he believed tiic commission would do. He next naked my opinion. 1 told him 1 did not like it. On returning, I could not forbear ob- serving to tlic Doctor, it was evident the Count did not wish to Hee our independence acknowledged by Great liritain, till they had made all their use of it. It was easy for them to foresee dilTicul- ties in bringing Spain into a peace on moderate terms; and that, if we once found ourselves standing on our legs, our independence acknowledged, and our other terms ready to be granted, we might not think it our duty to continue the war for the attainment of Spanish objects ; but as we were bound to continue the war till our independence was attained, it was the intent of France to post- pone that event. The Doctor imputed the conduct of the Minis- ter to his moderation ; and, as this Court has hitherto treated us fairly, we should not easily suspect them." A letter of the same tenor was also transmitted to Mr. Oswald himself, and which Mr. Jay succeeded in persuading Ur. Franklin to sign : , , ^. . ,„, ,,.^ .^ .s " It is with regret we find ourselves obliged by duty to our country to object to entering with you into negotiations for peace on the plan proposed. Our nation can treat with another nation only on terms of equality ; and it cannot be expected, that we should be the first and only persons, who would admit doubts of their independence. The tenor of your commission affords matter for a variety of objections, which your good sense will save us the pain of enumerating. The journals of Congress present to you unequivocal and uniform evidence of the sentiments and resolutions of Congress on the subject, and their positive instructions speak the same language. The manner of removing these obstacles is vol.. 1. 14 106 TREATY OF '83 WITH ENGLAND. obvious, and, in our opinion, no less consistent with the dignity than with the interest of Great Britain. If the Parliament meant to enable the king to conclude a treaty with us on teims of inde- pendence, they necessarily meant to enable him to do it in a man- ner compatible with his dignity, and, consequently, that he should previously regard us in a point of view, that would render it pro- per for him to negotiate with us. " As to referring an acknowledgment of our independence to the first article of a treaty, permit us to remark, that this implies, that we are not to be considered in that light, till after the conclu- sion of the treaty ; and our acquiescing would be to admit the pro- priety of our being considered in another light during that in- terval." As America was the ally of France, it was not consistent with the dignity of that nation, she should treat on other terms than those of independence. We may also remark, that as every idea of conquest on the part of England was absurd, nothing renojiined for that country, but to make friends of those she could not subdue, and independence constituting the action of the peace, it was a fair ground for negotiation to consider that topic, in conformity with the no- tion of Lord Shelburne, a condition of the peace, for which an equivalent should be conceded by the United States. It was obviously the intent of France to postpone the ac- knowledgment till the conclusion of a general peace, for America, by the terms of the treaty with that country, could not withdraw from the war, till the independence was assured. Mr. Jay prepared a detailed and learned memorial (now to be found in his correspondence) on the propriety of having Mr. Oswald's instructions altered, which he was in the act of sending to M. de Vergennes, when a despatch was received from the British government, authorizing their envoy to treat with the United States as sovereign and in- dependent.* There were two subjects, that created diflkulty and great * The Marquis do la Fayeiic lubourcd witli zeal and assiduity to reconcile the difFercnces of opinion between Mr. Jay and M. de Ver- gennes. Vid. Correspondence. TREATY OF '83 WITH ENGLAND. 107 irritation, — the fisheries, and compensation to the royalists and refugees. The American loyalists prolonged the war by the ill-founded accounts they gave the ministers respect- ing the state of parties in America. Indeed, if the British Cabinet had been less under the influence of those unfortu- nate individuals than of their own officers, the disastrous con- test with the colonies would certainly have terminated at an earlier period. It is a remarkable fact that the principal military men, who returned from America, such as General Burgoyne, Lord Cornwallis, Sir Wm. Howe, and Sir Henry Clinton, expressed opinions unfavourable to a continuation of the war. Whether the loyalists had taken arms against the United States from an honourable attachment to the mo- ther country, or from interested motives, could not, and ought not, to affect the question. In considering this sub- ject, it is impossible to go back to the original proposition, whether the parent state or colonies first violated the social compact that held them together, because that is really the point, which led to the war and terminated in the independ- ence. Neither does it signify that the war did not first be- gin on the part of the colonies for independence. Repeated and aggravated injustice fully warranted that last step, if the first measures of the people and of Congress could be justifi- ed. The loyalists had had the misfortune, or ill luck, to join a cause that had failed. Justice did not require that the victorious party should make them an indemnity. On the other hand, if the mother country had recovered the govern- ment of the colonies, the loyalists would have received an abundant reward, both of wealth and honours. All humane persons might have felt compassion for their deplorable con- dition ; they were objects of pity ; they had lost their coun- try and their property. But at the conclusion of the revo- lution war, the American government was not in a condition to extend gratuitously bounties to foreigners, as at this time the loyalists had, unhappily for themselves, become. It could not pay even its own officers and soldiers, much less its numerous citizens, who had suffered such great losses by the desolations of the enemy. Again, a " constitutional" 108 TREATY OF '83 WITH ENGLAND. difficulty presented itself. The estates of the loyalists had been confiscated by the acts of the States, and in numerous instances, had passed by the usual legal transfers into the hands of various individuals. Congress was not invested by the articles of the Union with any power over these local and domestic acts ; it was a matter exclusively reserved to the internal polity of the P ates themselves. The British insisted with great earnestness, that full indemnity should be provided for the whole body of loyalists. They were at the pains of sending an under secretary of state, Mr. S^rachey, to Paris, to urge this point. But he made no impression upon the American commissioners. The instruction of the government, issued October 18th, 1780, was precise and positive. " That with re«!pect to those person?, who have either abandon- ed or been banished from any of the United States, since the com- mencement of the war, he is to make no stipulations whatsoever for their readtnittance : and, as to an equivalent for their proper- ty, he may attend to propositions on that subject only on a recip- rocal stipulation that Great Britain will make fidl compensation for all the wanton destruction, \vluch the subjects of that nation have committed on the property of the citizens of the United States." This obstacle delayed the negotiation ; and, at one time, great apprehensions were felt, that the objection would be fatal. The ministry, some time after, in a debate on the provisional articles, declared, the business had come to such a pass, that the government had the alternative of continuing the war, or of abandoning the loyalists. While the articles of the provisional treaty were under discussion. Great Bri- tain was still in possession of New-York, Charleston, Penob- scot, Rhode-Island, Detroit, and the fisheries ; and the sur- render of these places and rights, was made a condition of compensation to her American subjects. This was a very troublesome demand ; but at this difficult crisis, a compro- mise was effected, in itself, perhaps, little more than nominal, considering the relation of the confederation to the independ- ent states, that composed it. U'his arrangement will be found in the fifth article of the treaty. The commissioners TREATY OF '83 WITH KNGLAND. 109 were satisfied that a treaty was impracticable, without some stipulation respecting the loyalists, though the article is an undoubted departure from their instructions. Congress, however, ratified tlie whole instrument, by an unanimous vote. The provisional treaty was signed at Paris, the 30th No- vember 1782, — on the part of America, by Messrs. Frank- lin, Adams, Laurens and Jay, — and, on the part of Great Britain, by Mr. Richard Oswald, Lord Shelburne being still at the head of alfairs in that country. Tlie preliminary ar- ticles being ratified, within the time specified, by the respec- tive governments, the dejhiitive treaty of peace, substantially a copy of the provisional one, was signed, — for America, by Messrs. Franklin, Adams and Jay, — and for England, by Mr. David Hartley, at Paris, the 3d September 1783.* " Passy, * "Art. 1. His Britannic Mujosty acknowledges the said United States, viz. Ncw-llanipsliiro, iMassaolMii^elts Bay, llliode Island and Providence Plantations, Connecticut, Ncw-Yoik, New-Jersey, Penn- sylvania, Delaware, IVIaryland, Virginia, North Carolina, South Caro- lina, and Georgia, to be Tree, sovereign and independent states; that lie treats with them as such ; and for himself, his heirs and successors, relinquishes all claims to the government, propriety, and territorial rights of the same, and every part thereof. \ '• ' "^ " Art. 2. And that all disputes which might arise in future, on tho subject of tho boundariesof the said tJnited States, maybe prevented, it is herpby agreed and declared, that the following are and shall be their boundaries, viz : — from tho north-west anglo of Nova Scotia, viz. that angle which is formed by a line drawn due north from tho source of Saint Croix river lo the highlands ; along the said highlands which divide those rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic ocean, to the north- westernmost head of Connecticut river; thence down along the mid- dle of that river, to the forty-fifth degree of north latitude ; from thence, by a line duo west on said latitude, until it strikes the river Iroquois, or Cataraquy ; thouco along the middle of said river, into lake Ontario, through he middle of said lake, until it strikes the com- munication by water between that lake and lake Eric; thence along tho middle of said communication into lake Erie, through the middle of saiil lake, until it arrives at the water communication between that lake and luko Huron ; tliciicc along the middle of said water commu- ii no TREATY OF *83 WITH ENGLAND. August 31, 1783. — After a continued course of treating for nine months, the £nglish ministry have at length come to a resolution to lay aside, for the present, all the new pro- nication into the lake Huron ; thence through the middle of said lake to the water communication between that lake and lake Superior ; thence through lake Superior, northward of the isles Royal and Phi- lipeaux, to the Long Lake ; thence through the middle of the said Long Lake, and tiie water communication between it and the lake of the Woods, to the said lake of the Woods ; thence through the said lake to the most north-western point thereof, — and from thence on a due west course to the river Mississip|)i ; thence by a line to be drawn along the middle of the said river Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north latitude. South, by a line to be drawn due east from the determination of the line last mentioned, in the latitude of thirty-one degrees north of tho equator, to the middle of the river Apalacliicoln, or Catahouche ; thence along the middle thereof to its junction with the Flint river ; thence straight to the head of St. Mary's river; and thence down along the middle of St. Mary's river to the Atlantic ocean. East, by a line to be drawn along the middle of the river St. Croix, from its mouth, in the bay of Fundy, to its source, and from its source, direct- ly north, to the aforesaid highlands, which divide the rivers that fall into the Atlantic ocean from those which full into the river St. Law- rence : comprehending all islands within twenty leagues of any part of the shores of the United States, and lying between lines to be drawn due east from the points where the aforesaid boundaries be- tween Nova Scotia on the one part, and East Florida on the other, ghall respectively touch the bay of Fundy, and the Atlantic ocean ; excepting such islands as now are, or heretofore have been, within the limits of the said province of Nova Scotia. " Art. 3. It is agreed, that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind, on the Grand Bank, and on all the other banks of Newfoundland ; also, in the gulf of St. Lawrence, and at all other places in the sea, where the inhabitants of both countries used, at any time heretofore, to fish ; and also, that the inhabitants of the United States shall have liberty to take fish of every kind, on such part of tho coast of Newfoundland as British fishermen shall use ; (but not to dry or cure the same on that island ;) and also on the coasts, bays and creeks, of all other of his Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled TREATY OF '83 WITH ENGLAND. Ill positions that have been made and agreed to (their own as well as ours), — and they offer to sign, as a definitive treaty, the articles of November 30, '82. We have agreed to this, bays, harbours and creeks of Novu Scotia, Magdalen Islands, and La- brador, so long as the same sliall remain unsettled ; but so soon as the same, or oitlier of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previ- ous agreement for that purpose, with the inhabitants, proprietors, or possessors of the ground. " Art. 4. It is agreed, that creditors on cither side, shall meet with no lawful impediment to the recovery of the full value, in sterling mo- ney, of all bona fide debts heretofore contracted. " Art. 5. It is agreed that the Congress shall earnestly recommend it to the legislatures of the respective states, to provide for the restitu- tion of nil estates, rights and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights and prof>crties of persons resident in districts in the possession of his majes- ty's arms, and who have not borne arms against the said United States. And that persons of any other description shall have free liberty to go to any part or parts of any of the thirteen United States, and therein to remain twelve months, unmolested in their endeavours to obtain the restitution of such of their estates, rights and properties, as may have been confiscated ; and that Congress shall also earnestly recom- mend to the several states a reconsideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts per- fectly consistent, not only with justice and equity, but with that spirit of concihation, which, on the return of the blessings of peace, should universally prevail. And that Congress shall also earnestly recom- mend to the several states, that the estates, rights and properties of such last mentioned persons, shall be restored to theni« they refunding to any persons who may be now in possession, the bona fide price (where any has been given) which such persons may have paid on pur- chasing any of the said lands, rights, or properties, since the confisca- tion. And it is agreed, that all persons who have any interest in con- fiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights. *' Art. 6. That there shall be no future confiscations made, nor any prosecutions commenced against any person or persons for, or by rea- son of, the part which he or they may have taken in the present war ; and that no person shall, on that account, suffer any future loss or 113 TREATY OF '83 WITH ENGLAND. and on Wednesday, the 3d of September, it will be signed with nil the other definitive treaties, establishing a general peace, which may God long continue."*' This treaty was unanimously ratified by Congress, on the 14th of February 1784. And, on the same day, they unanimously issued a recommendation to the states in pursuance with the stipula- tions of the fifth article. Hostilities ceased, by proclama- tion, in April of the preceding year. The British minister refused to insert an article in the treaty, on the subject of commerce. ^ ., : » .i The boundary of the United States, established by this treaty was, with the exception of the north-west portion, pre- (lamagc, either in his person, liberty, or property, and that those who may be in confinement on sucIj charges, at tlio time of the ratification of the treaty in America, siiall he immediately set at liberty, and the jn-osecution so commenced be discontinued. "Art. 7. There shall be a firm and perpetual peace between his Britannic majesty and the said states, and between the subjects of the one and the citizens of the other, wherefore all hostilities both by sea and land shall then immediately cease: all prisoners on l)oth sides shall be set at liberty, and his Britannic majesty shall, with all conve- nient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons and fleets from the said United States, and from every port, place and harbour within the same ; leaving in all fortifications the American artillery that may be therein ; and shall also order and cause all archives, records, deeds and papers, belonging to any of the said states, or their citizens, which in the course of the war may have fallen into the hands of his officers, to be forthwith re- stored and delivered to the proper states and persons to whom they belong. ,,3 ■■;: „ ' ' ,-:v ■;>- ',• ,.> "■',.-■■ v-,-/^ .,.,■_■ ^ ,-/' "Art. 8. The navigation of the river Mississippi, from its source to tlie ocean, shall for ever remain free and open to the subjects of Great Britain, and the citizens of the United States, " Art. 9. In case it should so happen, that any place or territory, belonging to Great Britain, or to the United States, should have been conquered by the arms of either, from the other, before the arrival of the said provisional articles in America, — it is agreed, that the ssune shall be restored without difliiculty, and without requiring a. •; com- pensation." ..■■ ♦■'■;.'■:■ ■•;-',:- V:;;-^- , ;•»: -K ;':"■'■', ' ■> ^ i * Franklin's Secret Correspondence. TREAT y OF '83 WITH ENGLAND. 113 lie siiuie cisely in conformity with the instructions of Congress of August '79. America succeeded to the territorial rights of the British king, a principle distinctly and publicly announc- ed, and of infinite value in subsequent negotiations with Spain. The original instructions would have deprived this country of the use of lake Superior, whereas the treaty boundary in- cluded the navigation of all the lakes. A greater extent of territory, also, fell into our hands. The English were de- sirous of holding all the territory described by the Quebec bill. Canada, by that instrument, was bounded south by the Ohio, and thence, due west to the Mississippi. This boundary, of course, included all the lakes, the present states of Ohio, Indiana and Illinois, and the territory of Michigan, and of the north-west. The Quebec bill was one of the grievances of which the colonies complained, and is alluded to in the declaration of independence. But this proposition was at once rejected. The British commissioner stipulated, with great care for the free navigation of the Mississippi. A very wrong estimate appears to have been formed, by his government, of the value of this privilege. The English fur companies held hunting grounds about its source ; but its mouth was, at that time, in the possession of Spain, — and, from the 45th degree to the Gulf of Mexico, England did not own a foot hold upon its banks. The navigation could have been valuable, only on the expectation of coming again into possession of West Florida ; though, by treaty, it still re- mained in the hands of Spain. The English government seemed to have had hopes of this acquisition ; as a separate article, never communicated to France, was introduced into the provisional treaty, to meet that change of territorial right. But, according to appearances, in '82, the British might as well have stipulated for a right to navigate the Rhine, or Rhone. The geography, about the sources of the Mississippi, was little understood in those days ; and the ar- rangement, on this head, was made in the dark by both par- tics. It is now ascertained, that the British boundaries of '83 did not touch that river. They would, therefore, have had a right to have gone through the territories of the Unit- VOL. 1. 15 114 TREATY OF '83 WITH ENGLAND. cd States, for the stipulation of navigation was an uncondi- tional one. One remark naturally forces itself upon us at this time. England and America divided, in this treaty, a great extent of territory, which, to say the least, was entire- ly unknown to both, and was inhabited by tribeG of savages, certainly uncivilized, but independent, and who had never fallen under the dominion of either party. America pre- served her original right in the fisheries, and such territorial rights as belonged by charter to the colonies. The north- west boundary was a matter of great embarrassment ; but it is obvious, at once, that the proposition to bring the British boundary down to the Ohio, and to settle the loyalists in the Illinois, would have led to serious and immediate difficulties. We are not aware, that the right of any nation to the fisheries was formally recognised, till the treaty of Utrecht, in 1713. The 13th article ceded Newfoundland, with the adjacent islands, to Great Britain ; Cape Breton, with the other islands situated in the mouth and in the gulf of St. Lawrence,' together with the right of taking and curing fish on the coasts of Newfoundland, from Cape Bonavista, on the eastern side, to the northern extremity of the island, and thence down the west coast to Point le Riche, were reserved to France. The treaty of Paris, of 1763, made some altera- tions in this arrangement ; though Newfoundland, itself, re- mained as under the original stipulation. But the French were restricted from fishing in the gulf of St. Lawrence, within three leagues of the British coasts, and fifteen of Cape Breton. They retained the small islands of St. Pierre and Miquelon, with the right of keeping a military post on them. Spain, by the 18th article of the same treaty, renounced, in favour of Great Britain, her right of fishing in the neighbour- hood of Newfoundland. It, therefore, happened, when the revolution war began, that the most valuable fishing grounds and privileges were in the possession of England, and of her subjects in North America. ^ Under the different charters defining the powers and ex- tent of the New-England colonies, or provinces, persons, born in any of these governments, were declared to have all TRKATY OF *83 WITU ENGLAND. 115 the rights and privileges of natural born subjects. A right of fishing on the coasts was particularly specified ; as well as to buiid all necessary stages, in places not occupied, for drying and curing fish. " It was their birthright, as British subjects ; it was their spe- cial right, as secured to them by charter ; and the British I'arlia- mcnt, itself, could deprive them of it, as they did, only by one of those acts which provoked and justified the declaration of inde- pendence. In March '75, Parliament passed ' an act to restrain the trade and commerce of the provinces of Massachusetts Bay, and Ncw-II'-impshirc, and colonies of Connecticut and Rhode Island, and Providence plantation, in North America, to Great Britain, Ire- land, and the British islands in the West Indies ; and to prohibit such provinces and colonies from carrying on any fishery on tliC Banks of Newfoundland, and other places therein mentioned, under certain conditions and limitations.' In moving for leave to bring in this bill. Lord North '• supported his motion by declaring that, as the Americans had refused to trade with this kingdom, it was but just that we should not suffer them to trade with any other na- tion. In particular, he said, that the fishery on the Banks of New- foundland, and the other biinks, and all the others in America, was the undoubted right of Great Britain ; therefore we might dis- pose of them as we pleased. That, although the two houses had not declared all Massachusetts Bay in rebellion, they had declared, that there is a rebellion in that province. It was just, therefore, to deprive that province of its fisheries.' ^' In the debates upon this bill, all the abilities and all the elo- quence of both parties, in the British Parliament, were called forth. On this bill, Mr. Charles Fox said, * that the bill must have been calculated to put an end to all that remained of the legislative au- thority of Great Britain over AjnCrica. That it must be intended to show to the colonies, that there was no one branch of supreme authority, which Parliament might not abuse in such a manner, as to render it reasonable to deny, and necessary to resist it.' Then, after enumerating all their previous acts of oppression, he added, ' but the British legislature is now to convince the Americans, that this power, thus used, may be made by far the most oppressive, and worse than any of those they had hitherto denied. He was quite satisfied, that the bill was meant for nothing else, but to ex- IIG TREATY or '83 WITH ENGLAND. asperate llie colonics into open nnd direct rebellion.' Mr. Burke, pursuing the same i(lc:i, and enlarging upon it, applied to the mi- nistry, who brought forward the bill, the passage from Macbeth, — 'I om in bluod Stcpt in HO far, that, bIiouUI I wndo no more, Returning were as tedious ns go o'er.' lie said, ' that the scheme was new, and unheard of, in any civi- lized nation, to preserve your authority by destroying your do- minions. It was rather the idea of hostility between independent states; where one, not being able to conquer another, thinks to reduce its strength gradually, by destroying its trade, and cutting off its resources.' On the i»assage of the bill througn the House of Lords, tliere was u protest against it, signed by sixteen peers, nmong whom are the names of Rockingham, Camden, and Fitz- william. " The nature of the rights and liberties, consisted in the free participation in a fishery. That fishery, covering the bol(om of the banks, which surround the island of Newfoundland, the oasts of New-England, Nova Scotia, the gulf of St. Lawrence, and Lr*- brador, furnishes the richest treasure, and the most beneficent, that ocean pays to earth, on this terraqueous globe. By the pleasure of the Creator of earth and seas, it had been constituted, in its phy- sical nature, ONE fishery, extending, in the open seas around that island, to little less than five degrees of latiti;le from the coast, spreading along the whole northern coast of this continent, and in- sinuating itself into all the bays, creeks and harbours, to the very borders of the shores. For the full enjoyment of an equal share in this fishery, it was necessary to have a nearly general access to every part of it. The habits of the game, which it pursues, being so far migratory, that they .vere found, at different periods, most abundant in different places ; sometimes populating the banks, and at others swarming close upon the shores. The latter portion of the fishery had, however, always been considered as the most valuable, inasmuch as it afforded the means of drying and curing the fish, im- mediately after they were caught, which could not be effected upon the banks. By the law of nature, this fishery belonged to the in- habitants of the regions in the neighbourhood of which it was sit- uated. By the conventional law of Europe, it belonged to the European nations, whioh had formed settlements in those regions. TRKATY OF 'ft3 WITH EBTOLANP. n? coast, and iii- tic very share cccss to !, being s, most s, and of the luablo, ish,im- d upon the in- as sit- to the ■egions. " The contlniinncG of the fishing liberty was the great object of the article ;* and the language of the article was accommodated to the severance of the jurisdiction, which was consummated by the same instrument. It was coinstantaneous with the severance of the jurisdiction itself; and was no more a grant from Great Britain, than the right acknowledged in the other part of the article, — or than the independence of the United States, acknowledged in the iirst article. It was a continuance of possessions enjoyed before ; and, at the same moment, and by the same act, under which the United States acknowledged those coasts and shores as being under a foreign jurisdiction, Great Britain recognised the liberty of the people of the United Stales to use them for purposes connected with the fisheries. As a possession, it was to be held by the peo- pie of the United Slates, as it had been held before. It was not, like the lands partitioned out by the same treaty, a corporeal pos- session ; but, in the technical language of the English law, an in- corporeal hereditanjcnt, — and, in that of the civil law, a right of mere faculty, consisting in the power and liberty of exercising a trade, places, in which it is exercised, being occupied only for the purposes of the trade. Now, the right or liberty to enjoy this pos- session, or to exercise this trade, could no more be aflfected or im- paire.1 by a declaration of war, than the right to the territory of the nation. The interruption to the exercise of it, during the war, could no more affect the right, than the occupation, by the enemy, of territory, could affect the right to that. The right to territory could be lost only by abandonment, or renunciation, in the trealj' of peace; by agreement to a new boundary line, — or by acquies- cence in the occupation of the territory by the enemy. The fish- ery liberties could be lost, only by express renunciation of them in treaty, — or by acquiescence, on the principle that the}' were for- feited, which would have been a tiicit renunciation.''t The treaty of '83 was an instrument of a peculiar charac- ter. It differed in its most essential circumstances from most of the treaties made between nations. It was a treat^' of partition ; — a treaty, to ascertain the boundaries and the lights of the nation, the mother country acknowledged to be - ' ■ . * See Treaty, Art. 3. ~' ; t The Fisheries, and the Mississippi. rt 118 theaty of '83 with fnoland. created by that instrument. Intlepcndcnco was one of the stipulations made in favour of America by Great Britain, (he boundaries were another, the fisheries a third ; — for the mother country asserted equal claims to all these rights or privileges. The treaties made by France or Holland with the United States before '83, were of a dilTorent description. Those countries had no pretensions to the government, ter- ritories or rights of the colonies. And, therefore, America did not seek from them an acknowledgment of her own rights or privileges. The conduct of the American commissioners, in agreeing to the provisional articles without consulting the court of France, has never been fully explained. The 8th article of the treaty of alliance, absolutely, though not in direct terms, forbids either party to enter into any negotiations for peace without the consent of the other. The instructions given to the commissioners on this point, were as precise and posi- tive as language could make them ; and they were often repeated. We shall quote one resolution from the secret journals of Congress. — " Resolved, unanimously, that as neither France or these United States may of right, so these United States will not conclude either truce or peace with the common enemy, without the formal consent of their ally first obtained ; and that any matters or things, which may be insinuated or asserted to the contrary thereof, tend to the injury and dishonour of the said states." One of the com> missioners, at least, was as deeply impressed as Congress with the impropriety of making a separate peace; and as late as January '82, only a few months before the provisional articles were signed, made use of the following emphatic language : — " The Congress will never instruct their com- missioners to obtain a peace on such ignominious terms ; and though there can be but few things in which I should ven- ture to disobey their orders, yet if it were possible for them to give me such an order as this, I should certainly refuse the act. I should instantly renounce their commission, and banish myself forever from so infamous a country." Speak- ing of the same individual in the preceding August, Mr. YRKATY OK '83 WITH ENGLAND. 119 ; and "Id ven- r them refuse n, and jpeak- Mr. Jay ubscrves, " he seemed to be much perplexed and fettered hy our instructions, to be guided by the advice of this court." It is impossible to suppose that these sentiments were not sin- cere. At that time it could neither have been for the welfare nor the honour of America to have consented to such an ar- rangement. M. dc Vcrgenncs had been at great pains to in- form the American commissioners of the intrigues of the Eng- lish for a separate peace ; and had apparently spoken with pride and exultation of the rt^ndiness and firmness, with which he had resisted these endeavours. In the first instructions given to Mr. Adams, France having complained, that the commis- sioner was not directed to consult the French court, a reso- lution was adopted to remove this ground of uneasiness. England, as M. de Vergenncs declared, in the spring of '83, offered France, to induce her to a separate peace, the pos- session of her conquests in the West Indies, the suppression of the commissary at Dunkirk, and advantages in the East. This proposal was indignantly rejected. Uncommon harmo- ny, a mutual good understanding, and a ready communication of uU important matters, appear to have prevailed up to the hour that the preliminaries were signed. The negotiation was conducted both on the part of France and of the United States, agreeably to the recommendation and advice of M. de Vergennes, expressed a few months before. Though each nation treated with a separate commissioner, the nego- tiation was simultaneous, and it was understood that the preliminaries should all be signed on the same day. On the 29th of November, Dr. Franklin wrote to M. de Vergennes, to inform him, that the provisional articles between Great Britain and the United States were agreed on. He conclud- ed by saying : " To-morrow I hope we shall be able to communicate to your excellency a copy of them." The next day, the 30tb, they were signed. But they were not communicated till after the signatures were affixed. The separate article respecting Florida was never communicated at all. The court of France regarded this proceeding with great dissatisfaction ; and the minister soon expressed in bitter language, the chagrin and mortification he felt at the circumstance : ti KH. 120 TREATY OF '83 WITH ENGLAND. ■| I .. " I find great difficulty in explaining your conduct and that of your colleagues. You have concluded your preliminary articles without giving us information, though your instructions particularly directed you to take no steps without the participation of the king. You are going to raise in America hopes of an undoubted peace, and we are here in reality ignorant of the state of your negotiation. You are celebrated, sir, for wisdom ; you are acquainted with the obligations of society ; you have discharged your duties with ex- actness during your life. Do you think that in this business you have fulfilled those that bind you to the king ? 1 shall not extend my reflections further. I leave them to your own ideas of propri- ety." We shall extract part of the letter Dr. Franklin wrote in answer to these reproaches. We believe none of our read- ers will think it remarkable for its dignity : " Nothing has been agreed on in the preliminaries contrary to the interests of France, and no peace is to take place between us and England, till you have concluded yours. Your observation is, however, apparently just, that in not consulting you before they were signed, we have been guilty of neglecting a point of biense- ance. But as this was not from want of respect for the king, whom we all love and honour, we hope it will be excused, and that the great work, which has hitherto been so happily conducted, is so nearly brought to perfection, and is so glorious to his reign, will not be ruined by a single indiscretion of ours. And, certainly, the whole edifice sinks to the ground immediately, if you refuse on that account to give us any further assistance. It is not possible for any one to be more sensible than I am, of what I and every American owe to the king, for the many and great benefits and favours he has bestowed upon us. All my letters to America are proofs of this, all tending to make the same impressions on the minds of my countrymen, that I felt in my own. And I believe that no prince was ever more beloved and respected by his own subjects, than the king is by the people of the United States. The English, I just now learn, flatter themselves they have already divided us. I hope this little misunderstanding will, therefore, be kept a perfect secret, and that they will find themselves totally mistaken." TREATY OF '83 WITH ENGLAND. 121 This direct deviation from positive instructions, this appa- rent ingratitude and perfidy to a faithful and valuable ally, is susceptible of a full and ready explanation."* Early in 1782 it was foreseen that England was not the only country, that would present obstacles to a peace, safe and satisfactory to the United States. America, now independent, found her- self compelled to resist Spain, claiming territory on the one hand, and France seeking an exclusive possession of the fishe- ries on the other. She had succeeded to the rights, the ad- vantageous position, and a portion of the commerce of the mother country in the new world ; and undoubtedly France and Spain were well aware, that the United States would become dangerous neighbours on the land, and troublesome competitors on the ocean. Tiie American colonies had al- ways been so, even while their trade was subject to the con- trol and prohibition of Great Britain. But France and Spain did not anticipate, that America would either claim, or be able to maintain all the former rights of the colonies. They entered into the negotiation of '82 with the intention and expectation of extorting from England, to the injury of the United States, some portion of her territory, and a part of one of her most valuable privileges. Both those countries had a heavy balance to settle with Great Britain in the new world ; and they remembered, with bitterness and mortifica- tion, the provisions of the two treaties of Utrecht and Paris. Spain was the first court that advanced pretensions incom- patible with the just and undoubted boundaries of the United States. At the time of Mr. Jay's negotiation in that country, in 1780, the Spanish minister, Count d'Aranda,f intimated * Wo have the following anecdote from a direct source. Dr. Franklin, ono day sitting, during the discussion of the question of in- structions, in Mr. Jay's room at Paris, S'lid to that gentleman, "Will you break your instructions ?" " Yes," replied Mr. Jay, who was smoking a pipe, " as I break this pipe ;" — and immediately threw it into the fire. t There is now in the Department of State at Washington a copy of Michel's map of North America, on which the Count d'Aranda tracetl, in the presence of Mr. Jay at Paris in the summer of '82, where VOL. 1. 16 ri^ TREATY OF '83 WITH ENGLAND. an intention, on the part of his government, of excluding America from territory to the westward of the Alleghany. The pretension was in every way ill founded ; but Spain was a powerful nation, governed by a Bourbon, in^ close alliance with France, firmly united to that country by a family com- pact, and an uncommon identity of views and policy. They had embarked in the general war with England, and were en- gaged in the general negotiation at Paris. The ministers of the two Bourbon princes acted upon all occasions in exact concert, and would mutually contribute either to depress England, or to abridge the new and unconfirmed powers and rights of the United States. In truth, to consult France con- cerning boundaries, was indirectly obtaining the approbation of Spain ; and the commissioners had every reason to suppose that latter country would never consent to the western fron- tier, marked out in the preliminary articles. The apprehen- sion of meeting with obstacles in securing this valuable, nay, indispensable boundary, acted as a poAverful inducement not only to hasten the progress of the preliminaries, but as a jus- tifiable pretence for withholding the knowledge of them from the court of France. These considerations rendered it in- expedient to communicate, at any period of the negotiation, the separate article on the conditional boundaries of West Florida. During the negotiation the frequent conferences between M. de Vergennes and M. d'Aranda were well known to the American commissioners. It was, also, ascertained that in the Count was then Spanish minister, the boundaries of Spain, begin- ning, on the north, at tlie confluence of the Ohio and the Renhawah, and running round the western sliores of Erie, Huron and Michigan to lake Superior. This boundary included all the Western States. As early as January 1780, the French minister communicated to Con- gress by order of his court the following statement of claims on the part of Spain. " The exclusive navigation of the Mississippi. The possession of the Floridas. And the lands on the left bank of the Mississippi." It is very clear, Spain intended to obtain from the United States an acknowledgment of these pretensions before she recognised the inde- pendence. TREATY OP '83 WITH ENGLAND. 123 August '82, M. de Rayneval had been sent privately to Lon- don, and on the morning of his departui j the Spanish minis- ter went, contrary to his usual practice, with post horses to Versailles, where he passed several hours with M. de Ver- gennes. The object of this mission was supposed to be, to give notice to Great Britain, that France did not approve of the pretension of the United States to treat as an independent power, — to ascertain, whether England would agree to di- vide the fisheries with France, — and to impress upon Eng- land the determination of Spain to adhere to the exclusive possession of (he Gulf of Mexico, — and to agree to give Great Britain, eventually, all the country, north of the Ohio. France, also, formally and publicly supported the pretensions of Spain to the Mississippi — De Rayneval wrote a long memoir on the subject, in which he remarks, " It is evident, that the Ameri- cans can only borrow from England the right, they pretend to have, to extend as far as the Mississippi. Before the treaty of Paris, France possessed Louisiana and Canada, and she considered the savage people to the east of the Missis- sippi either as independent, or as under her protection. Nei- ther Spain nor the United States have the least dominion over the lands in question, as the king of Great Britain declared he had none by his proclamation of October 1763. By the line I propose, Spain will lose almost the whole course of the Ohio. As to the na^ gation of the Mississippi, it will follow with the property. If Spain preserves West Florida, she will be master to the 31st degree. Whatever may be the situa- tion to the north of this parallel, the Americans can have no pretensions to it, not being proprietors of either bank of the river." From a government maintaining these doctrines the United States could not look for much support and counte- nance in asserting her own just claim. The boundaries America sought, were the legitimate boun- daries of her country ; at least, it ill became Spain to qontest them. No other country in Europe, but England, could pos- sibly claim a right to dictate to the United States on the western quarter; for England, in her original capacity, ac- tually owned as far as the Mississippi. The negotiation, tak- nm 124 TREATY OF '83 WITH ENGLAND. ing at this time an unexpected turn, America and England became parties to oppose the aspiring spirit of the house of Bourbon. Circumstances produced a sudden coalition be- tween two nations, engaged for seven years in cruel warfare, and which had ended in the total discomfiture of one of them. It was for the benefit of both to conclude a peace as speedily as possible, England to lessen the number of her enemies, and America to prevent her former allies from despoiling her of those rights, her recent enemy had consented to resign. On the side of France, the United States had much more to fear. She was disposed to curtail their fishing rights and privileges, to maintain Spain in her pretensions respecting boundaries, and to aid England in exacting a compensation for the loyalists. A letter written by M. de Marbois, secre- tary of the French legation, from Philadelphia, dated March 1 3th, '82, intercepted and decyphered at the time, if it did not give the first intimation of similar designs in the French court, strengthened at least, the suspicions before entertained. M. de Marbois advised M. de Vergennes to cause it to be inti- mated to the American ministers, " his surprise that the Newfoundland fisheries have been included in the additional instructions. That the United States set forth pretensions therein, without paying regard to the fcrng-'s (French) rights^ and without considering the impossibility they are under of making conquests, and of keeping what belongs to Great Britain.* It will be better to have it declared at an early period to the Americans, that their pretensions to the fishe- ries of the great Bank are not founded, and that his majesty does not mean to support them." These extracts, taken in connexion with the obvious policy of the French court, and the declaration of de Rayneval to Jay and Franklin at Passy in October '82, that the American fishing right should not extend beyond a coast one, could leave few doubts concern- ing its designs. The commissioners had received precise and positive instructions, on no account to surrender the fishe- * Mr. Ralph Izzard, of South Carolina, suggested to Mr. Adams, iu April 78, that France had formed a design to deprive America of tlie fisheries. TUFATY OF '83 WITH FNGI.ANP. 125 lies.* The importance of this branch of commerce was well known to them ; they saw it was in jeopardy, and they be- * Tills remark rccjiiirus an explanation. In the instructions to con- clude a treaty of peace, an " equal common right to the fisheries," was not made an ultimatum. But on the subject of a " treaty of com- merce," the following directions were given to the commissioners: — " In order tliat you may he the better able to act with propriety on this occasion, it is necessary for you to know, that we have deter- mined, 1st. That the common right of fishing shall in no case be given up. ^d. That it is essential to the welfare of all these United States, that the inhabitants thereof at the expiration of the war, should conr tlnue to enjoy the free and undisturbed exercise of their connnon righ^ to fish on the banks of Newfoundland, and the other fishing bank^ and seas of North America, j)rcscrving inviolate the treaties between France and the said states. 3d. That aftplication shall be made to hi:^ most Christian Majesty to agree to some article or articles for the bet- ter securing to these states a sliare in the said fisheries. 4th. That if, after a treaty of peace with Great Britain, she shall molest the citizens or inhiibitants of any of the United States, in taking fish on the banks and places hereinafter described, such molestation, being in our o|>i- nion a direct violation and breach of the peace, shall be a common cause of the said states, and tiie force of the Union be exerted to ob- tain redress for the parties injured; and .5th. That our faith be pledg- ed to the several states, that without their unanimous consent, no treaty of commerce shall bo entered into, nor any trade or commerce carried on with Great Britain, without the exidicit stipulation herein- after mentioned. You are, therefore, not to consent to any treaty of commerce with Great Britain, without an explicit stipulation on her part, not to molest or disturb the inhabitants of the United States of America in taking fish on tlic banks of Newfoundland, and other fish- erics in liie American seas, any wiiere, excepting within the distance of three leagues of the shores of the territories remaining to Great Britain at the close of the war. If a nearer dis^tance cannot be obtained by negotiation. And in the negotiation, you are to exert your most strenuous endeavours to obtain a nearer distance to the Gulf of St. Lawrence, and particularly along the shores of Nova Scotia, as to which latter we are desirous that even tlie shores may be occasionally used for the purpose of carrying on the fisheries, by the inhabitants of these states." The parties in Congress on the fisheries, appear to liave been equally divided ; at least, the struggle was very long. One party could not obtain a majority to induce Congress to give them up, nor the other to make them an ultimatum of peace. 126 TREATY OF '83 WITH ENGLAND. licved it to be more lor the interest of the country to adhere to this portion of their instructions, than to disobey those, that related to the communication of the preliminaries.''*' The French minister was also disposed to unite with England in insisting upon a compensation to the loyalists. France did not join in the war for the sake of supporting the cause of liberty ; nor could the French government regard the principles of the American revolution with kindness or confidence. It was natural France should feel a greater sympathy for monarchical governments, and individuals that maintained monarchical principles. When she assisted Ameri- ca, it is not at all likely she looked to the kind of government that would be established ; but it is most likely she would have preferred the establishment of any other than a repub- lican one ; at any rate, there appears to be no inconsistency in supposing that France might be desirous that the United States should succeed against England, and at the same time, think it e]^tremely just that a compensation should be given to ihat portion of the people, who had been faithful to their king. The preliminaries signed with England contained nothing unfavourable to France. England ceded to the Unit- ed States nothing that either France or Spain could under any reasonable pretence claim. And it was made a condi- tion of the preliminaries that the definitive treaty should not be concluded till peace was made between England and France. The commissioners may have been guilty of a neglect of bienseance (to use Dr. Franklin's expression), but no harsher term could justly be applied to their conduct. France set the example of disregarding the spirit of concert and mutual aid and confidence, enjoined upon the two pow- ers by the treaties of amity and alliance ; for she was secret- ly using her influence, at that time very powerful, in a man- ner injurious to America. The confederation, therefore, was * Congress directed tlie cf-mmissioiiers to coinmunicnte every step to the French minister, " ultimately to govern themselves by the ad- vice and instruction of the French court." This arrangement actually made M. de Vergenncs minister plenipotentiary for the United States. It committed their independence and interests to his control. TRHATY or '83 WITH BNOLAND. 137 . no longer under any obligation to adhere to the conditions of the treaty of alliance. Being opposed, nay deserted, by their ally on the first approaches of peace, the American commissioners considered themselves absolved from obeying the instruction that directed them to consult France. In- deed, the silence of the French minister in relation to this proceeding, aflbrds ample justification for their conduct. The only notice of the dissatisfaction of his government, we have on record, is in the letter written to Franklin by M. deVer- gennes. The minister rather intimates there that the com- missioners had been guilty of an act of indecorum. The let- ter is severe and reproachful in its terms and allusions, but it does not treat the deviation as a very serious business, as in reality, it was not. The intercourse between the minis- ters was not interrupted ; M. de Vergennes sent despatches by the vessel the commissioners had engaged to carry a copy of tbe provisional articles ; — the resident in America entered no protest touching the conduct of the commissioners, nor did he make any complaint whatever; — and the French court appeared to be satisfied with the explanations that were given. We may, therefore, infer from these circumstances, either that the government thought the deviation quite insignificant, or that there were sufficient reasons for it.* These remarks arc made for the single purpose of justifying the American commissioners, though it will appear by an extract of a let- ter, we are about to make from Dr. Franklin, of July 1783, that the commissioners, themselves, were not agreed on the motives, which governed M. de Vergennes. Messrs. Adams roan- -, was * When the definitive treaty wiis signed, the Englisli commissioner refused to sign it at Versailles. It was therefore signed at Paris. M. de Vergennes d«sired the American commissioners to send him an ex- press to Versailles when it was done, as he did not choose to sign on the part of France, till he was sure the American treaty was complet- ed. It has been stated by a person of high authority, that an attempt was uinde iu Congress to pass a resolution of censure on the commis- sioners for the deviation from their instructions in regard to the court uf France. But it was not successful ; nor do any traces now remain of the votes or debate. 128 TREATY OF '83 WITH ENGLAND. and Jay seem to have had little confidence in the professions of the French court, and upon those topics in regard to which a diversity of opinion existed, they prevailed against Dr. Franklin ; but this circumstance produced neither coldness nor discord. " It gives me great pleasure," writes Mr. Jay, December 12, '82, "to inform you that perfect unanimity has, hitherto, prevailed among your commissioners. There has not been the least division or opposition among us, since the negotiation began with Mr. Oswald. Mr. Adams was particularly useful respecting the eastern boundary ; and Dr. Franklin's firmness on the subject of the tories did us much service." The passage to which we alluded in the begin- ning of this paragraph, is as follows. " I will only add, that, with respect to myself, neither the letter of M. de Marbois, nor the conversations respecting the fisheries, the boundaries, the royalists, &c. recommending moderation in our demands, are of weight sufficient, in my mind, to fix an opinion, that this court wished to restrain us in obtaining any degree of advantage, we could prevail on our enemies to accord, since those discourses are fairly resolvable by supposing a very natural apprehension, that we, relying too much on the ability of France to continue the war in our favour, and supply us constantly with money, might insist on more advantages, than England would be willing to grant, and, thereby, lose the op- portunity of making a peace, so necessary to all our friends." To France herself, America was under great obligations. That corntry had certainly afforded material assistance, espe- cially in the supply of arms, money and military stores. These articles were furnished at an early period of the war, when they were indispensable, and could not have been ob- tained from other countries. In the course of '78, 79, 80, France loaned America 8,000,000 on favourable terms. It is unreasonable and even ridiculous to enquire into the mo- tives, that induced her to make the alliance. It is sufficient to say that it was most fortunate for America she could offer such inducements to France as ultimately to lead her into the measure. mEATY OF '83 WITH ENGLAND. 139 Since This treaty, exceedingly favourable and honourable to America, %vas negotiated hy the commissioners with uncom- mon address ; they took advantage successfully of the ancient jealousy and enmity that, existed between England and the house of Bourbon. Without entering into this fearful war for independence, America obtained an acknowledgment of it in the fullest manner, as well as a confirmation of the original boundaries of the colonies, and a recognition of her rights and privileges in the fisheries. She made a much more favourable treaty witJi Great Britain than either Spain or France. The Spanish minister, de Florida Blanca, was not satisfied with the peace ; he said of it : " The French minister was too precipitate in beginning the war, and too precipitate in making peace." A Spaniard would be expect- ed to say as much. He, also, expressed an opinion, that Vergennes had concerted with the Americans to withhold the preliminaries, in order to force Spain to a peace. In England the treaty with America was unpopular, and taken, together with the concessions she was absolutely under the necessity of making at the same time to France and Spain, threw the ministiy into a minority in the first debate in the House of Commons. The acknowledgment of the inde- pendence of this country would have cost any administration their places, but the time had come when the colonies must be sacrificed, together wifh the ministry that consented to the dismemberment, — an act of self-devotion to the good of their country, and, one may truly say, of the world. Lord Shel- burne's administration fell before the combined array of the original opposition, represented by Mr. Fox, and that portion of the ministerial party that had declared the war, and had retired with Lord North. From this state of parties pro- ceeded the most monstrous and unnatural coalition to be met with in English history, but upon which the nation, at an early hour, wreaked the full measure of its vengeance. On / the part of Great Britain, it was a treaty to declare the inde- pendence of America. The other conditions, concerning territory and the fisheries, though undoubtedly extorted, fol- lowed as necessary consequences. But time has proved that VOL. 1. 17 130 TREATY or '83 WITH ENGLAND. necessity acted, on this occasion, the part of good poh'cy. America would have been uneasy under any terms, th%t at all abridged the freedom and perfect independence of her situation. She had become a nation, and she properly and naturally required all those rights and privileges, which be- long to that condition. Great Britain could not have held a hunting lodge, or exercised a single franchise within territory or jurisdiction, once strictly colonial, without awakening im- ^ mediate jealousies, or speedily interrupting the peace. "^ Before finishing the account of this treaty, it is only ne- cessary to remark, that the commissioners did nut succeed in making any commercial arrangements. They thought it ad- visable to defer the consideration of that subject, though they had already secured one of the principal objects, proposed in a commercial treaty. The English sought for delaf in this business ; they were not prepared for the new state of things ; they had not determined on what conduct to pursue in regard to America ; or they might have had hopes that the revolution was not thoroughly consolidated. Evidently, an expectation was entertained, that the confederacy would dissolve from weakness, and that some portion of the wreck would seek again the support and union of the mother country ; a senti- ment, which was universal throughout Europe. r. f^i "Mf *»>*-» ( l.'3l ) CHAPTER V. TREATIES OF 1785 AND 1790 WITH PRUSSIA. Fotirlh power in Europe to conclude a Treaty — Lee appointed in '77 to Berlin anil Vienna — JVot received by either court — Remarks on Jlustria — IJisfull powers stolen at Berlin — His account of that busi- ness — Hessians made to pay same toll as cattle — CarmichaeVs letter —Letter from King to Lee — Lettersfrom Prussian Minister — Adams respecting Elliot — Prince Henry — Treaty of '05 — Peculiar provi- sions — Private war abolished — Treaty of '99 — Last mission to Prussia political — Dangerous policy. _. Though Prussia took no part in the revolution war, she was the fourth power in Europe to conclude a treaty of ami- ty and commerce with the United States.'"' At peace with England, soon after the commencement of hostilities Prussia was threatened with a war by the emperor, which, indeed, actually took place about the time, the United States applied to her government for aid and alliance. But Frederick II., usually called the Great, was not animated with a friendly feeling towards England, and it is well known, he viewed the progress of the American revolution with satisfaction. f Very early in the war. Congress took steps to obtain the co- operation of Prussia, together with that of some other pow- ers in Europe ; and in May 1777, William Lee, of Virginia, was appointed a commissioner to the courts of Vienna and Berlin. The objects of the mission are fully explained in his instructions, of which we subjoin an extract : " As it is of the greatest importance to these states, that Great Britain be effectually obstructed in the plan of sending German and * The treaty of '83 with England, was of a different description. t The reader will find some remarks on this subject, in the third volume of bis works. 132 TKKATIRS WITH PRIT88IA. 11 Rusxian troops to North America^ you will exert all possible nddicss ami vigour to cultivate the I'riend.shii) and procure the interference of the emperor of Ciermany, and king of I'russia. To this end, you will propose treaties of friendship and commerce with these powers, on the same commercial principles as were the basis of the first treaties of friendship and commerce, proposed to the courts of France and Spain by our commissioners, and which were ap- proved in Congress on the seventeenth day of September 1770 ; and not interfering with any treaties, which may have been pro- posed to, or concluded with the courts above mentioned. For your better instruction herein, the commissioners at the court of Ver- sailles will be desired to furnish you from Paris with a copy of the treoty, originally proposed by Congress to be entered into with France, together with the subsequent alterations, that have been proposed on cither side. You are to propose no treaty of com- merce to be of longer duration than the term of twelve years from the date of its ratification by the Congress of the United States. And it must never be forgotten in these commercial treaties, that reciprocal and equal advantages to the people of both countries be firmly and plainly secured." Mr. Lee was not received by the emperor, the court of Vienna positively refusing to have any thing to do with the revolted colonies. He appears to have been in that capital in May 1778, and was then advised by the French minister " to wait with patience till things wore a more favourable as- pect, than they do at present." We believe (with an ex- ception already mentioned) this is the only instance of an endeavour in our history to enter into any sort of diplomatic arrangement with Austria. Though occupying so large a portion of the richest, most ancient and civilized part of Eu- rope, — at one time at the head of the German empire, — now decorated with the celebrated iron crown of the Lombards^ and actually embracing within her dominions a greater extent of fertile and highly cultivated territory than any other Chris- tian state, still, Austria, on account of a remarkable absence of sea ports, has presented few inducements to nations, (whose foreign intercourse is strictly commercial) to enter into the ordinary diplomatic courtesies. A single port or haven at the head of the Adriatic, once the proudest sea 'I'REATlEfi WITH PRUSSIA. 133 of the old world, is the only innritimo inlet of any note, by which the vast possessions of this empire, stretching out from the spurs of the Alps, north, and cast, and south, can now be approached.* Prussia practised the same coquetry towards this country, she had experienced, in the onset, from France, and, during the course of the revolution, from the principal states of Eu- rope. But, owing to her military position and resources, the warlike and aspiring character of her population, and the un- common success, that had attended her military enterprizes, Prussia (whose territory had just been greatly increased by the first and iniquitous partition of Poland), occupied, in the commencement of the war with the mother country, high and formidable ground. Abounding in those materials of which we then stood most in need, the importance of her aid and alliance impressed itself forcibly upon the attention of the continental Congress. This monarchy sprung, to speak just- ly, from an intrenched camp, and (to use an expression of the Roman historians, in describing the expansion and deve- lopment of their empire) the foundations of it were literally laid, wherever the Prussian eagles extended. It partakes much of the nature of a political phenomenon to behold, in modern times, a new nation, gradually reared into full life by the force of arms, in the midst of an ancient, civilized continent. This process has, heretofore, been reserved for the various barbarous tribes from the east and north, that, from time to time, have been seen, in the shape of Huns, Goths, Vandals, Ostrogoths, spreading themselves like a mil- dew, over the smiling, rose-coloured plains of Europe, just in proportion as luxury and corruption have preceded them. Held in the north, on the edge of civilization, as an instru- ment of retribution, to be brought forth at the interval of * Arthur Leo, who was in Vienna the preceding year, wrote, May 27, 1777, to the Commissioners at Paris. " I reached this in tlirco days from Munich. I shall not leave till the 29th. Dresden will be my next stage. There is a cold tranquillity here, that bodes us no good. ♦ On ne peut echauffcr la froideur allemandc.' From what I learn, wo need be under no apprehensions from Itussin." i "^ fSHIf 134 TRBATtBS WITH PRUSSIA. ag€8, either to repress the amhition of individuals, or to re- store the equality of nations, they may be compared to the water standing in a fixed level above the rich plains and meadows of Lombardy and Holland, which never fails at the first decay or weakness in the moles and dykes, to pour through the openings, and cover with slime and ruin villa- ges and vineyards, the cornfield as well as the pasture. Though Prussia, towards the end of the nineteenth century, had acquired much additional territory, and appeared firmly seated in her dominion, yet there was a period, during the last twenty years, when the house of Brandenburg was just on the verge of being compressed within her original marches and scanty possessions. But late events have removed those doubts, and, at this moment, she occupies her place in the German empire, as the undisturbed and dangerous rival of Austria. No sooner had the king, Frederick II., been informed of the revolutionary movements ol America and the declaration of July '76, than, urged by that waiehful, searching, sagaci- ous spirit, for which, among all his contemporaries, he was truly conspicuous, he gave directions to his minister at Paris to inquire, with care and discretion, into the position of the American agents at the court of Versailles. By a man of reflection and of a penetrating mind, the resistance of the colonies could never have been viewed as an ordinary trans- action, though we are bound to say, that, with all his acute- ness end power of combination, Frederick seems to have regarded the Revolution only in the twofold light of doing a mischief to England, against whom he exhibited uncommon antipathy, and affording, perhaps, some slight, casual com- merce to the Prussian ports in the German sea. A confe- rence, accordingly, took place at Paris between the agent of the king of Prussia and Silas Deane. From the correspond- ence and journals of that individual, now remaining, it ap- pears that the Prussian made proposals for a commercial treaty, and expressed a desire an American should be sent to Berlin. This was done, as he declared, at the instance of the king, who was desirous of having a clear and full idea TRXATIES WITH PRUSSIA. 135 it ap- nercial sent stance 1 idea of our commerce, and who had been drraming (to use the expression of (he Prussian agent) for seviral years of turn- ing Embden into another Amsterdam. Upon this invitation, and at the request of Mr. Deane, Wiiliam Carmichael, at that time in Paris, went to Berlin in November '76 ; but not the least notice was taken of him, either officially, or in a private manner.'*' Before the commission to William Lee * We give in this note a few extracts from a letter Mr. Carmichael wrote from Amsterdam, on his way to Berlin : " Amsterdam, November 1776. " To the Committee of Correspondence. " Gentlemen, — Here I have endeavoured to engage merchants to speculate in a direct commerce to America, to find out the sentiments of the people in general respecting us, to know whether in case of ne» cessity, the United States would be able to negotiate a loan, whether England would be able to obtain further credit, and by this barometer of the ability of princes, to discover their present situation. On these heads I have written Mr. Deane, — but having an opportunity, by the way of St. Eustatia, and thinking none should be neglected of giving information, though mine perhaps may not be of importance enough to merit that title, I have taken the liberty of addressing the honourable Committee. Arriving but two days afler the accounts had reachei} this city of our misfortune on Long Island, I found many, even of the sanguine friends of America, defected, and those of England almost in a frenzy of joy. In this disposition, it is easy to judge, no hopes could be entertained of engaging uierchants in a direct trade. I fintj they have the greatest inclinations to serve us, and at the same time themselves, for no people see their interest clearer ; but their fearsj that we shall be subdued, the confident assertions of the friends of England, confirming these apprehensions, the prodigious sums they have in the English funds, with this unlucky business at New-York, all conspire to prevent direct speculation. As my letters from Paris introduced me to the first houses here, I have had the best opportuni- ty of knowing their sentiments, and I can venture to say, that with many who are apparently adverse to us, 'tis interest combatting with principle, — for, insulted, searched and plundered as the Dutch were the last war, and are at present, their individuals by no means want sensibility to feel, though the public wants spirit to resent the injury. " I hope it will not be long before all Europe will own us in another cViaracter. It is very certain that, without a very material and ap[)a- rent success of the British arms in America, a loan would be very 136 TREATIES WITH PRUSSIA. i! for Austria and Prussia arrived in Europe, Arthur Lee, one of the most faithful, zealous and industrious of our foreign agents, had been induced, by the representations made at slowly negotiated for England here. There is nothing hinders them now from selling out of the English funds, hut their not knowing what to do with their money ; — for this country may he called the treasury of Europe, and its stock of specie is more or less, according to the necessities of the different princes in Europe : It being a time of peace, the call has not been very great of late. Having mentioned the credit of England, that of France is next to be considered ; and, I am sorry to say, that has been very low here of late, the dreadful mis- management of the finances in the late king's reign. The character of the late comptroller general, M. de Olugny, had reduced it so low, that it was impossible to borrow any thing considerable on perpetual funds. By life rents, something might be done. Perhaps a minister of Finance, in whose probity the world have a confidence, may restore their credit. At this moment that is in some measure the case, for the French stocks rise on the appointment of M. Taboreau. That it is possible for France to borrow, may be demonstrated, for at the time M. Turgot was removed, he was negotiating a loan here, and was likely to succeed, for sixty millions of guilders. " The credit of Spain is extremely good, and that kingdom may have what money it will, and on the best terms. The emperor's credit js also good,— not as emperor, but from his hereditary dominions. Sweden and Denmark both have good credit. The former the best ; |hey have money at four per cent., and it is not long since the king of Sweden borrowed three millions of guilders at this interest, to pay off old debts at five per cent. ; his interest is paid punctually. Prussit^ has no credit here ; but his treasury is full, by squeezing the last farth- ing from his people, — and now and then he draws a little money from this republic, by reviving obsolete claims. The credit of the empress pf Russia is very good, for she has punctually paid the interest of twelve millions of guilders, which she borrowed in her war with the Turk, and has lately paid off one million and a half of the principal ; these are the strongest circumstances she could have in her favour, with a mercantile people. I have this state of credit from persons employed in negotiating the several loans, and therefore can depend on the truth of the information.— To come next to America: should fime and necessity oblige her to look abroad for money. In the pre- sent state of affairs, it is not probable that a loan is practicable. But should success attend our arms, that is, should it appear evident that TREATIES WITH PRUSSIA. 137 ders them called the Paris, to undertake a journey in the month of June '77, to Berlin. We observe that he was accompanied by a Mr. we are like to support our independency, or should cither Frnnce or Spain acknowledge our independence, in either of these cases I be- lieve we might have money ; ond when it was seen that we were punctual in our first payments of the interest, we should have as much as we pleased. " The price of our product is great : rice sells for 25s. sterling per cwt., and tobacco for 8 stivers and 4d. per pound. You have been threatened that the Ukraine would supply Europe with tobacco. I:^ must be long before that can arrive. I have seen some of its tobacco here, and the best of it is worse than the worst of our ground leaf. 400,000 pounds have been sent here this year. The Russian ambassa- dor said at the Baron le Guerres, ambassador from Sweden, where I had the honour to dine, that Russia soon would be able to supply the market with that article. In this he spoke more like an ambassador than a merchant. I took occasion in reply to observe, that if that was the case, and on many other accounts, it was the interest of his mis- tress that all intercourse between Great Britain and America should be broke off, for that then the former would be dependent on Russia for all these articles, which hitherto the latter iiad supplied her with. Having expressed a desire of knowing these reasons at large, with the assistance of Mens. D s, and the approbation of Mr. D., I purpose giving in a little memoir on the subject, which, the ambassador assures me,.shall be sent to Petersburg. Not being so sanguine as to think that it will prevent Russia from supplying Eugland with troops, should the other demand them, but it may give a secret dilatoriness to their assistance, which may finally operate in our favour. " I need not mention to you any thing respecting what is like to take place in Europe another year ; for of that ere this you, I hope, have information. I will only say, that the greater part contemplate with pleasure the gloomy prospect for England ; there is not an envoy of the most petty state in Italy but exults at it. The want of intelli- gence from America hurts the cause prodigiously in Europe, and the anxiety of those, who have its interest at heart, is from that circum- stance inconceivable. I hope I need not assurances to convince the honourable Congress of the zeal with which I wish to serve them ; to be directed by that honourable body in what manner to do it most ef- fectually will be the happiest circumstance of my life. " I have the honour to be, &c. " WILLIAM CARMICHAEL." 'rSSII^ VOL. I. 18 ,11* 138 TREATIES WITH PRUSSIA. '' I Sayre, who had been sheriff of the city of London, an American, we believe, by birth, and who, after the peace, settled in the state of Pennsylvania, where he died. Hav- ing given notice of his arrival to M. de Schulenbourg, the Prussian minister, he received from him, on the 9th of the month, the following letter. *« I lose no time in assuring you, as I did in the letter addressed to you at Paris, that your residence at Berlin will not be, at all, disagreeable to the king, provided you live there as an individual, and with- out assuming a public character. As to the information you give me respecting commerce, you will please to add a me- morandum of the places, where assurances are to be effected on vessels destined for America, and the premiums to be paid. I will then examine your propositions, and shall soon be able to inform you, whether we conceive it practicable to make an experiment of the kind with success." This letter fully explains the object the Prussian government had in view in inviting Mr. Lee to Berlin. Another letter was addressed, on the 26th June, to the American agent by the same individual. " His Majesty cannot, in the present in- stance, embroil himself with the court of London. More- over, our ports have hitherto only received merchantmen. It will be necessary for us to inform ourselves, how France and Spain conduct themselves, and what formality they have observed towards your privateers, consistent with the friend- ship they owe to Great Britain. The result of this informa- tion will decide, whether and upon what terms the desired permission can be granted." This letter applied to a re- quest of Lee's, that the Prussian ports might be opened for the sale of American prizes. Thiebault, in his memoirs of the court of Berlin, mentions the singular fact of two Americans having had their private papers stolen from their hotel at Berlin. Those individuals were Mr. Lee and his companion. An account of this busi- ness is given in a letter of the former gentleman from Paris: " While I W513 at dinner one day, some persons contrived to get into my chamber, which was locked, and broke open my desk, from whence they took all my papers. I soon discovered the robbery. TREATIES WITH PRUSSIA. 139 nnd, alarming the police, the English envoy, who happened to be in the hotel, \vhen the nlarm was given, immediately went home, and in a few minutes the papers were returned, apparently un- opened. The envoy went to the king the next day, but was not admitted. It appeared on examination, that his servant had offer- ed a large sum to the servants of the house, if they would steal my papers. But iis I never went out of my room upon the most tri- fling occasion without locking them up, they had recourse to vio- lence. The resentment of every one at so outrageous an act was soon lost in the contempt of the envoi's folly in returning, what he had incurred so much risk in acquiring. The minister of state informed me they would do nothing more than insist on his recall, which, considering the unfavourable light in which he stood, he would probably do himself In reality, no notice whatever was taken of this affair, either by the police, (to whom it properly belonged, Mr. Lee not being an official person ) or by the minister of state, for Mr. Elliot remained many months, after the transaction, at Berlin, where, notwithstanding the king's dislike of his na- tion, he appears to have been a favourite.'**' * The reader will find a confirmation of this account, in regard to Mr. Elliot, in Mr. Adams' Letters from Silesia, when minister at the court of Berlin, pp. 256, 257, 258. " Mr. E is in person, and at times in manners, one of the most accomplished gentlemen I ever knew. He was extremely civil to us last autumn, though I had occasion afterwards to know that his civili- ties did not then proceed from any cordial kindness towards us ; but that, as Americans, he saw us at first with embarrassment and dislike. These sentiments, in the course of our intercourse with him at that time, I believe gradually wore away ; and as they had probably pro- ceeded from the supposition that his name was odious to Americans, owing to the transaction at Berlin, relative to Mr. Lee's papers, during the American war, I found him now designedly and repeatedly recur- ring to that subject in his conversation. After observing that it was now a circumstance that might with full freedom be talked of as a mere historical occurrence, he solemnly declared that the seizure of Mr. Lee's papers was not made by his orders ; that it was entirely the act of an ofiiuious servant, who thought to do him a service by it ; that when the papers were brought to him he did look over them in- deed, and found among them only two of any consequence ; one, the 140 TREATIES WITH PKUMMIA. When Mr. Lee first arrived in Berlin, the king was absent on a review of troops ; — but on bis return, he addressed to the American agent the following remarkable letter. "Potsdam, July 2, 1777. " The king, having received Mr. Lee's letter, dated Berlin, July 1, and his complaint of the robbery, that has been committed, is pleased to return him the answer, that his Majesty has just order- ed his Minister of Slate to hear what he has further to say on the subject. That for this purpc^e, Mr. Lee may communicate to the said minister, without reserve, every thing he may wish to inform his Majesty of; — who assures him by the present letter, that an in- violable secrecy shall be observed respecting the overture, he may think proper to make through this channel." This letter, though written in the king's own hand, is en- couraging no further, than as manifesting a desire to enter into a direct, confidential intercourse with the American agent. It conclusively reserves the right of adopting such definitive arrangements, as circumstances, or the information procured, may prescribe. But the letter merits to be pre- served for the single consideration of being written in the year '77 by the great Frederick, in a confidential manner, to an authorized commissioner of this country. The presence of Mr. Lee at Berlin was well known to Mr. Elliot, the English minister at that court, and, whether the temporary loss of Mr. Lee's papers was in any manner beneficial to Mr. Elliot, the object of this gentleman's mis- sion (to purchase arms and obtain other assistance) could not have been concealed from him. It was not only matter of general and public conversation at Berlin, but a contem- porary writer, residing then in that capital, informs us, that the British minister became immediately intimate with the draught of an unfiniiiiicd treaty with Spain, and the other a letter from Frederick the Second, or one of his ministers, promising that if any great power in Europe would set the example of acknowledging the independence of the United States, he would be the first to follow it. I am inclined to believe that this account is true, and I was pleased to see the anxiety, with which Mr. E. wished to remove the imputa- tion of having premeditated that act of violence." TRKATIES WITH PRUSSIA. 141 American agent, and treating him as a countryman, insisted upon his heing iiululgcd ^vith the constant pleasure of his so- ciety, it was during one of these hours, when Mr. Lee was adbrding Mr. Elliot the benefit of his company, that his port- folio was removed from his lodgings, and it then contained, at least, two of the letters of the Prussian minister. At a public audience at this period, the king said to the English minister, " Well, sir, you are at war with your colonies." " Yes, sire, but we hope soon to make up." " I hope so too, but war is a terrible process for bringing about a reconcilia- tion. I have had, sir, so much to do with war, that upon that subject 1 may be allowed to have settled opinions. It is truly frightful to be obliged to carry on a war, even, at home, an army has so many wants, for which it is so diffi- cult to provide in season. But if your army is at the other side of the globe, believe an old practitioner, when he says it, that to provide these troops with every thing they may want, is the masterpiece of human prudence." — Mr. Elliot received these remarks with entire coolness, probably per? ceiving, that some part of the counsel was dictated by feelr ings not of the most flattering kind to his own country. He, besides, appears to have been a man of talents and liveliness of mind, and to the various remarks of condolence and sym- pathy, made to him by foreign ministers on the issue of the contest, after France had joined the colonies, he replied, — r " The worst that can happen is, that instead of being tho first people in the world, we shall then be the second." The last extract it is important to recite, will show, in a single word, the reason for which Prussia refused Mr. Lee's propositions. It is from a letter of M. de Schulenbourg of August 8, 1777. "Prussia can do nothing, because France has done nothing. We must wait for more favourable cir- cumstances to establish a commercial convention." But the Prussian government followed with a watchful eye the course of the Revolution, and, in that respect, seems to have shown a penetration and foresight, it had the honour of sharing with a single government in Europe. In November '77, M. de Schulenbourg wrote to Mr. Lee in Paris, soliciting precise W 142 TREATIES WITH PRUSSIA. information concerning the reported capture of Burgoyne ; and, on the 16th of January of the following year, he ad- dressed him a letter of a more formal description. " His Majesty hopes, that your generous efforts may be followed with entire success, and as I have already apprised you, he will not hesitiite to acknowledge your independence, whenever France, more directly interested in the event, shall give the example. His Majesty would have no difficulty in receiving your vessels into his ports, if he was not entirely destitute of the means of avenging any insults, that might be oiTered them within his jurisdiction. £mb- den, though a safe and excellent harbour, is not provided with for< tifications. He is, therefore, unwilling to expose himself to this indignity. As to the muskets and other arms of our manufacture, you are at liberty to purchase or command them, and the bankers, Spelbergers, have received orders to deliver such as you may re- quire. I enclose a memorandum of the prices paid by the king." The treaty of alliance with France was not known till two months after the date of this letter, but the king of Prussia, embarrassed by the state of Germany, and menaced by the English navy, never redeemed a pledge, thus formal- ly given. Still, he was favourably disposed, and took every opportunity to maintain an intercourse, and to secure for him- self, without a direct engagement, some share of the com- mercial benefits, that might result from the future emancipa- tion of the colonies. In February 1779, M. de Schulen- bourg again wrote to Mr. Lee ; and it is the last extract we shall make. " The merchants of North America, who should come, with their merchant vessels, into the ports of his Ma- jesty to trade there, in merchandise not prohibited, should have full liberty, and should be received, in every respect, as the merchants of other countries." — It is not necessary to go into the nice discussion, how far such offers are violations of neutrality. There is no doubt a precise rule on the sub- ject in the laws of nations, but we learn from a brief experi- ence, that the just application of the principle mainly de- pends on the direction, that the contest, between colony and parent state, '.^ay take. It was said at the time, that Frederick compelled the re- 1 'L-. i I TREATIES WITH PRUSSIA. 143 cruits of Hesse Cassel, who had been bought to carry on the war in America, (and who had occasion to pass through his dominions, in order to reach their places of embarkation,) to pay the same toll or duty per head, as was exacted from cattle. The king may have considered this an ingenious piece of pleasantry, or have adopted this mode of express- ing his abhorrence and disgust at the practice of selling chris- tian men. Nations, in alliance with others in times of war, often transfer their troops, and, in coalitions, nothing is more common than for one party to furnish the subsidy, and the other the army. In all ages, men have, as individuals, en- tered into foreign service ; but, we believe, that the conven- tions, made in the year '76 with the states of Brunswick and Hesse Cassel, and county of Hanau, present the first instances in history, where governments, for the purpose of enriching their treasuries, have condemned their subjects to fight, not only in a foreign cause, but against a country, with whom their own was at peace. Some Prussian officers, however, entered into the American service, and made themselveii very useful, (one in particular will always be gratefully remembered) but they were not sent by the government nor are we aware, that Frederick took an ac- tive part n the revolution, notwithstanding the intimation that has been given in regard to prince Henry. Peace having been concluded with Great Britain, the in- dependence of the United States acknowledged, and the American commissioners at the court of Versailles having received general instructions to conclude treaties with the powers of the continent, a treaty was made at the Hague in September '85, with Prussia.* It was negotiated on the * Having already given nnmcrous extracts from other treaties, we shall in this place only select the provisions of this treaty that are pe- culiar, remarking that it contains the stipulation respecting freedom of conscience, already cited in the treaty with the Netherlands, and all other arrangements of the most favourable kind concerning com- merce. " Art. 2. The subjects of Prussia may frequent the coasts and countries of the United States, may reside and trade there ; and allow- n 144 TREATIES WITH PRUSSIA. part of America by Messrs. Franklin, Jefferson and Adams, and on the part of Prussia by M. de Thulemeyer. This in- strument, ratified the next year by Congress, was the last public uct of Dr. Franklin in Europe. 'i I od to onjoy all tho rights and privileges of commerce granted to the moat favoured nations. "..»RT. 3. American citi/cns moy freely trade to tho Prussian do- minions ; may reside tliere ; and arc entitled to all tlio privileges of commerce and navigation granted to the most favoured nations. "Art. 4. More especially each party shall have a right to carry their own produce, manufactures, and merchandise, in their own or any other vessels, to any parts of tho dominions of the other, where it shall be lawful fur all tho subjects or citizens of that other freely to purchase them ; and thence to take the produce, manufactures, and merchandise of the other, which all the suid citizens or subjects shall in like manner be free to sell them, paying in both cases such duties, charges, and fees only, as are or shall be paid by the most favoured nation. Nevertheless, the king of Prussia and the United States, and each of them, reserve to themselves the right, where any nation re- strains the transportation of merchandise to the vessels of the coun- try of which it is the growth or manufacture, to establish against such nation retaliating regulations ; and also the right to prohibit, in their respective countries, the importation and exportation of all merchan- dise whatsoever, when reasons of state shall require it. In this case, the subjects or citizens of either of tho contracting parties, shall not import nor export the merchandise prohibited by the other; but if one of the contracting parties permits any other nation to import or export the same merchandise, the citizens or subjects of the other shall im- mediately enjoy the same liberty. *' Art. 5. The loading or unloading of vessels of each party, not to be constrained or impeded, in the ports of the other. "Art. 6. All lawful examination of goods for exportation, to be made before they are put on board ; and no search of vessels at any time, except in case of fraud. " Art. 7. Each party to endeavour to protect the vessels and effects of the other, within their respective jurisdictions, by sea or land, &c. " Art. 8. Vessels of either party, coming on the coasts or entering the ports of the other, and not willing to break bulk, to be allowed freely to depart, &c. " Art. 9. The ancient and barbarous right to wrecks, abolished between the parties. TREATIES WITH PRU8IIA. 145 This treaty, which has been called a beautiful abstraction, is remarkable for the provisions it contains, though it does not appear that they have been attended with any good con- "Art. 10. And where, on the death of nny |ierson holding real estate within the territurics of the one porty, such real estate would, liy the laws of tlie land, descend on a citizen or subject of the otlior, were he not dis(|iiali(ied by alienage, such subject t*liall be allowed a rcasnnal)lo time tu sell the same, and to withdraw the proceeds with- out tnolestatiun, and exempt from all rights of detraction on the part of the government of the respective states. But this orticle shall not derogate in any manner from the force of the laws already published, or hereafter to be published by his majesty the king of Prussia, to prevent the emigration of his subjects. '* Art. 11. Liberty of conscience secured ; but no insult to be ofTer- ed to religion. " " Art. 12. Free trade allowed with an enemy. Free ships to make free goods. Free ships to protect persons, except soldiers in the actual service of an enemy. " Art. 13. And in the same case of one of the contracting parties being engaged in war with any other power, to prevent all the diffi- culties and misunderstandings that usually arise respecting the nier- chondise heretofore called contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of one of the parties to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding ; paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors : and it shall further be allowed to use in the service of the captors, the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed, of a vessel stopped for articles heretofore deem- ed contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not, in that case, be carried into any port, nor further detained, but shall be allowed to proceed on her voyage. *' Art. 14. One of the parties being at war, and the other at peace, VOL. I. . 19 146 TREATIES WITH PRUSSIA. sequences to (he parties, or have been of practical utility to the world. Blockades of everj description were abolished, —the flag covered the property, — contrabands were exeinpt- the neutral party to bo fiirnisliod with sea letters or passports, which arc to ho exhibited as well at sou ns in port. *' Art. 15. Vessels of war of either party, vraitiiig tho merchant vessels of tlio other, not to approach within cannon shot, nor semi more than two or three men on board, to examine the 8hi|i's papers. " Art. 10. It is agreed, that tho subjects or citizens oi' each of tho contracting parties, their vessels, and ellucts, shall not be liable to any embargo, or detention on the part of the other, for any military expe- (lition, or other public or private purpose whatsoever. And in all cases of so'zure, detention, or arrest, for debts contracted, or offences committed by any citizen or subject of the one party, within the juris- diction of tho other, tho samn shall be made and prosecuted by order and authority of law only, and according to the regular course of pro- ceedings usual in such cases. " Art. 17. Vessels, Sec. of either party, taken by an enemy or a pirate, and recaptured by the other, to be restored on proof. "Art. 18. Vessels of either party, driven by stress of weather, &.c. into the ports of the other, to bo protected, and the persons on board treated with humanity, &e. " Art. 19. Vessels of war of each party may freely enter and do- part from the ports of "the other with their prizes. , " Art. 2U. Citizens of one party not to take commissions, or letters of marc|,ue, from a third power, to act against the other. Neither par- ty to furnish military or naval succor to a third power, to aid it against the other. .... i ...;.,. " Art. 21. Regulations to be observed in case of war against a com- mon enemy. Vessels of one party, recaptured from on enemy of the other, by a private armed vessel, within twenty-four hours after being taken, to be restored on payment of one-third value of the v.csscl and cargo ; if after twenty-four hours, wholly a'prize. In cose the recap- ture should be by a public vessel of cither party, within twenty-four hours after the taking, restoration to be made on payment of one- thirtieth, and if longer, one-tenth of the value of vessel and cargo. Proof and surety required before restitution. The legality of prizes to be determined according to the laws of each party, respectively. "Art. 32. In case of a common enemy, or both being neutral, tho vessels of war of each party to aflford convoy. "Art. 23. If war should arise between the two contracting par- TIIKATIKS WfTn PRUMIA. Hi par- ed from confiscation, though they might bo employed for (he use of the captor, on payment of their full value. This, wc believe, is the only treaty ever made by America, in which tiH8, tlio merchatitt of cither country, then residing in the other, shall be allowed to remuiii nine months to collect their debts and settle their afltiir?, uiid iimy depart frucly, currying off all their ofiects, without molestation or hindrance : nnd nil women and children, scholars of every fuculty, cultivators of the corth, nrtiznns, manufacturers, and fiHlicrmcn, unarmed uuil iulinbiting unfortified towns, villages, or pla- ces, ond in general ail others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be Inirnt, or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power, by the events of war, they may happen to fall ; but if any thing is necessary to bo taken from them for the use of such armed force, the same shall be paid for at a reasonable price. And all merchant and trading vessels employed in exchanging the products of different pla- ces, and thereby rendering the necessaries, conveniences, and com- forts of human life more easy to be obtained, and more genera), shall be allowed to pass free and unmolested ; and neither of the contract- ing powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce. " Art. 24. And, to prevent the destruction of prisoners of war, by sending them into distant and inclement countries, or by crowding them into close and noxious places, the two contracting parties so- lemnly pledge themselves to each other, and to the world, that they will not adopt any such practice ; that neither will send the prisoners whom thoy may take from the other into the East Indies, or any other parts of Asia or Africa, but that they shall be placed in some part of their dominions in Europe or America, in wholesome situations; that they shall not be confined in dungeons, prison-ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs; that the officers shall be enlarged on their paroles within convenient districts, and have comfortable quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomy and good as are pro- vided by the party in whose power they are, for their own troops ; that the officers shall ulso be daily furnished by the party in whose power they arc, with as many rations, and the same articles and quality, as 148 TREATIES WITH PRUSSIA, ii4 contrabands were not subject to confiscation ; nor are we aware that any other modern treaty contains this remarka- ble provision. We are probably indebted to Dr. Franklin for the article. It had long been a favourite subject with him to procure the exemption, from the evils of war, of all persons engaged in private pursuits, or occupations, and to abolish privateering. He was desirous of having similar articles inserted in the treaty with England of '83, and pro- posed, then> to Mr> Oswald, are allowed by tliem, either in kind or by commutation, to officers of equal rank in their own army ; and all others shall be daily furnished by them with such ration as they allow to a common soldier in their own service ; the value whereof shall be paid by the other party on 4 mutual adjustment of accounts for the subsistence of prisoners at the close of the war ; av} the said accounts shall not be niingled with, nor setoff against any others, nor the balances due on them be with- held as a satisfaction or reprisal for any other article, or for any other cause, real or pretended, whatever ; that each party shall be allowed to keep jEi commissary of prisoners, of their own appointment, with every separate cantonment of prisoners in possession of the other, which commissary shall sec the prisoners as often as he pleases, shall be allovved to receive and distribute whatever comforts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him ; but if any officer shall break his parole, or any other prisoner shall escape from the limits of his canton- ment, after they shall have been designated to him, such individual officer, or other prisoner, shall forfeit so much of the benefit of this larticle as provides for his enlargement on parole or cantonment. And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspend- ing this and the next preceding article ; but, on the contrary, that the state of war is precisely that for which they are provided ; and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations. "Art. 25. Each party may have considti, &;c. in the ports of the other. " Art. 26. Favours granted to any other nation, in navigation or commerce, by one party, shall become common to the other, on the same conditions." • The treaty was limited to ten years* from the year 1786. TREATIES WITH PRUSSIA. 149 All wars consist in attacks on private property, for there is scarcely any other mode of making a war felt ; few na- tions have public property within reach of an enemy. If a state, like America, should withdraw the few public ships it has from the ocean, it is difficult to conceive how a war could be conducted against it, for all its trade, occupation, commerce, and manufactures would go on as in time of peace. If the enemy land, the treaty forbids them destroyr ing, and even compels them to live at their own expense. This proposition seems to be incapable of application ; for the distinction between the public and the private property of a nation is a vague one, more especially under a free government ; and, after all, public property, speaking with strictness, even in despotic countries, constitutes a very small portion of the wealth of the state. We do not underr take to say, what effect it would have on the patriotism of the people, to separate them so entirely from the govern- ment, as this arrangement would do. But we have great doubts, supposing it all along perfectly practicable, whether this scheme would have any other effect than to make wars perpetual. They should be accompanied with some horrors, at least, to prevent nations from engaging in them too eager-r ly. As to the particular application of the part, relating to privateers to this country, it can never be the policy of America, while that system exists among civilized nations^ to debar themselves of the right of issuing commissions to private armed vessels. The country has the means, in time of war, of doing more injury to an enemy by that species of molestation, than any other whatever. Privateering is to be justified as one mode of harassing an enemy, that the cus^ toms of civilized nations allow a belligerent to adopt, and it can be defended on the same ground as most of the other practices of war. It is not easy to make a just and sound distinction between captures by private and public armed vessels ; one form of capture is probably as humane as the other. It makes little difference, we imagine, to the enemy's merchantman whether he falls into the hands of a privateer or a frigate. At any rate, we cannot but be amused that 150 TREATIES WITH PRUSSIA. the King of Prussia, a principal conspirator in the partition of Poland and author of various profligate attacks on Saxonj, should, nevertheless, manifest such extreme tenderness for the property of private traders ; and without a ship himself on the ocean, should take such an interest in the rights of neutrals. In finishing this paragraph, it will occur to every one, that the principal objection to the provisions of the 23d article would be the extreme difiiculcy of adhering to them.* This treaty expired in '96. The United States had no direct trade with Prussia before the year '99 ; the trade with that part of Germany having been principally conducted through Hamburgh and Bremen. Since '99, we have had occasionally some slight commercial intercourse with Prussia, but it has been greatly interrupted by the wars in Europe, and the continental system. In general, however, the ex- ports from Prussia have exceeded the imports. Prussia, since the last arrangement in 1815, now owns an extensive seacoast, though our trade has latterly much fallen off to that part of the world. It is, at present, on the new footing of reciprocity. '''■'^' ' The treaty of '85 was renewed in '99, at Berlin, by John Quincy Adamsf on the part of the United States, and, on the part of Prussia, by the Count of Finckenstein, M. d'Alvensleben, and the Count 'of Haugwitz. This treaty, though a copy, in most of the articles, of that of '85, differ- ed in several respects. The rule, that free ships make free goods, not having been respected during the two last wars, the parties agreed, at the return of peace, to concert such arrangements with the maritime powers, as should, hereafter, secure the navigation and commerce of the neutral. Con- trabands were specified, and confined to military arms and stores ; the exemption, stipulated in the 16th article of the treaty of '85, on the subject of an embargo, was annulled. ;:^ * It will be seen that in tlie next treaty made with Prussia in '99, the whole of this stipulation, respecting privateers and the exemption of private ti'ndini^ vessels, was omitted. f Appointed minister plenipotentiary in June '95. ,;,. TREATIES WITH PRUSSIA. 161 Vessels were, thereafter, subject to embargoes on the prin-* ciple of the most favoured nation, and an indemnity was stipulated for all vessels detained for public uses. The original regulation in the 23d article of the same treaty, respecting privateers and merchant and trading vessels, was abolished. This treaty expired, by its own limitation, in 1810. It has not been renewed, — nor have the United States, since Mr. Adams's return in 1801, appointed a min- ister to Prussia. -. : ' t. .*v, The last mission to Prussia seems to have been little re- quired either by the condition of the commerce, or of the political relations of the country ; but 'it was instituted for a purpose, which, though in itself harmless as matters turned out, must, nevertheless, be considered a variation from the direct neutral cour- ? of the United States. The renewal of the original treaty of 1785 with that nation was not, in itself, of sufficient importance to render a special embassy necessary ; this country never derived any benefits from that instrument, nor could any in the actual state of com- merce be anticipated. The mission was political, and, in that view of the subject, cannot, we think, meet with much favour from any reflecting statesman of the present day. Washington, about retiring from the office of President, had just delivered his farewell address, in which he recommended to the people to have as " little political connexion with foreign nations as possible." All seemed to feel and ac- knowledge the force, wisdom and soundness of the maxim, notwithstanding the excitement, produced in one portion of the community by the guaranty of the treaty of alliance. And from his successor, who came into office with the vast benefit of all the experience to be derived from having been associated, in a high station, with General Washington, during the eight years of his administration, an immediate deviation from this course of policy was by no means to be expected. This eminent individual had witnessed the suc- cessful operation of the system of neutrality, adop.^id by the first President, and he was aware of the considerations, that made the proclamation of 1793, necessary, as well as of the m 152 TREATIES WITH PRUSSIA. .I'l source, tvhence flowed the troubles and difficulties of that trying tiine» But in the second year of the second adminis- tration, a message was addressed to Congress, in which no- tions, in regard to foreign intercourse, are developed that were, we believe, as unexpected, as they ever will be con- sidered of hazardous import and tendency. In different parts of this work we may appear to have spoken too fully and with too much emphasis of measures, touching our for- eign relations, that were not accompanied with direct, ob- vious mischiefs ; but we cannot separate the domestic from the foreign policy of the government, and, in our judgment, the mutilation, which the prevalence of such opinions will finally cause to the constitution itself, must prove fatal, for they will lay the broad, gradual foundations of a concentra- tion and consolidation of power, that, the only barrier, now existing in the States, will be found, altogether, too feeble to resist. We confess as, upon all occasions of domestic policy, we should adhere to the fair, precise, plain text of the constitution, and admit neither gloss, commentary, nor interpolation, so, in regard to foreign relations, we trust the government will never be seduced by schemes of ambition, or prospects of immediate, temporary advantage, to embark upon this wide, unknown, dark, boisterous sea of alliances, political connexions, or confederacies, by whatever name, nature, or description called, or known. ^ The message, to which we have alluded, was in these words: :,} . . iv ^^v. /". ■ - •" :\n,-- ■•'''•■ ' " Although it is very true, that we ought ;iot to involve our- selves in the political system of Europe, but keep ourselves dis- tinct and separate from it if we can; yet to effect this separation, early, punctual and continued information of the current chain of events and of the political projects in certain relations, is no less necessary than if we were directly concerned in them. It is ne- cessary in order to the discovery of the effects, made to draw us into the vortex, in season to make prt'paration against them. However we may consider ourselves, the maritime and commer- cial powers of the world will consider the United States of Ameri- ca as forming a weight in that balance of power in Europe, which TREATIES WITH PRUSSIA. 153 can never be forgotten or neglected. It would not only be ngninst our interest, but it would be doing wrong to one half of Europe, at least, if we should voluntarily throw ourselves into either scale. It is a natural policy for a nation, that studies to be neutral, to con- sult with other nations, engaged in the same studies and pursuits — at the same time, that measures ought to be pursued with this view, our treaties with Prussia and Sweden, one of which is ex- pired, and the other near expiring, may be renewed." ^" The nomination, made in pursuance of the intimation, contained in this document, was confirmed by the Senate, and the necessary appropriation granted by the 'House ; but in both bodies the measure was resisted with zeal and per- severance. A long debate arose in the House of Represen- tatives on the foreign intercourse bill, involving a considera- tion of the expediency and necessity of this act. A general outline of the remarks of the speakers only has been pre- served in the public prints of the day : but we, certainly, are not able to reconcile the sentiments of the able men, who supported the administration, either with the precepts of a rigid, judicious and steady neutrality, or with the rules and maxims of government, now consecrated by the prac- tice and example of Washington. From that period, party heat distorted and confused to some extent almost every dis- cussion, still not a single expression of opinion, or political indication, of any sort his since been observed in the histo- ry ->( this nation, which can raise in the mind of a man (who will now calmly, impartially and carefully examine for him- self) a reasonable doubt, both of the consequences of that measure to the administration of the second President, and of the broad, deep, mark of disapprobation, the American people have set upon that and every succeeding endeavour to expand the relations with foreign states beyond the pre- cise bounds, that an honourable, matured and prosperous system of neutrality has firmly and distinctly adjusted.* , * Since Mr. Adams' second mission, the U. States, we believe, have had no diplomatic agent at Berlin. In 1819 Frederic Greubm was accredited as a minister from Prussia, and at present that government is represented here by Mr. Niederstetter, a charge d'affaires. VOL. r. 20 n ■ j.»* ( 154 ) ■I 1 ■;^■■.,J 'x ':;; . .'I ,■ /ij ,U L'i'; i US'.'},. I CHAPTER VI. ' «', TREATY OF 1794 WITH GREAT IJUITAIN. Confederation no power over Commerce— Commercial conventions with France, Holland^ Prussia and Sweden — JVo trade — IVade to Eng- land only important one — Depended on an annual act of Parlia- ment — Policy at variance with Europe — Mr. Adams chosen to St. James — First envoy — Adams'* address to King and the answer — Well received — JVotes with Lord Caermarthen — Presentation — England refused to make a treaty — Account of violations of treaty of '83 — Debts — Interest — Remarks on JVavy and Commerce — Symptoms of war in Europe — Pass off- — Inscription on gate at Cherson — Con- federacy dissolved — Randolpli's letter on state of Parties — Ham- mond, first envoy to this country — Morris — Pinckney — Origin of oppressive acts by belligerents — War between France and England — Provisions contraband — Rules of neutrality — Danger of a war — Executive appoints Mr. Jay to London — Jay''s instructions — De- cides question of neutrality — Concludes a treaty — Unpopular — Dii- icrhances on account of treaty — Eventually favourable to the United States. The United States, at the close of the war of 1783, had commercial treaties with France, Sweden and Holland, but no trade with either of those countries. The Congress of the confederation were not invested with power to regulate commerce, or to levy imposts, and a proposition, made to the states, authorizing the government to assess a duty of five per cent, ad valorem on imports, had been rejected. The confederacy was adopted for the purpose of carrying on the war, and was, in reality, adapted to few other purposes. The excitements of the contest and the necessity of securing their independence, supported the people in their hardships. But peace left them, if possible, with still greater hardships, and without a single circumstance of excitement. The ex- TREATY OF '94 WITH ENGLAND. 155 ternal pressure, that alone had kept the states united, was removed ; and at this juncture there appeared thirteen sove- reign, independent governments, bound together nominally in one confederation, each entitled and equally qualified in its own capacity to assess taxes, to establish duties and rates of tonnage, and to open or forbid with each other or with for- eign nations, every species of trade or intercourse. Ame- rica, in a state of colonization, had been permitted to drive only a restricted commerce. The exports were limited to the parent country, and to the least valuable markets of Af- rica, of the south of Europe, and to the West Indies ; though the articles termed in the navigation and subsequent acts, " enumerated commodities," were confined exclusively to Great Britain. The parallel of Cape Finisterre, the bound- ary of the trade to the north, entirely cut off France, Swe- den and Holland ; countries with whom, as we have said, America had commercial conventions, but no habits of inter- course. The whole trade to Great Britain, her colonies and possessions, (altogether the only one of any value at that period) rested upon the precarious tenure of an annual act of Parliament. The course of trade, and of every description of commu- nication with Europe, had formerly been that of a colony. And now become independent, the policy of America could in no way be made to follow in the same current with that of the nations, with whom she was brought immediately to act. Those countries were old and hardened in a system of exclusion and commercial proscription. They held colo- nies upon whom, according to the fashionable doctrines of the day, not yet entirely exploded, it was just and proper to impose restrictions for the purpose, to use the emphatic words of the preamble to the statute 15 Charles II. "of keeping them (the colonics) in a firmer dependence upon it (the mother country) and" rendering " them yet more beneficial and advantageous to it." On the other hand, the United States having no manufactures at home to protect, or foreign possessions, whose trade it was necessary to mo- nopolize, found themselves at variance on every point with i/ im TREATY OF '94 WITH ENGLAND. the systems of the European governments. In their earliest instructions, Congress recommended the adoption of a liberal scheme of commerce, a system now gradually introducing itself through the world, but at the tim- exceedingly dis- relished and condemned by most of the writers on com- merce, particularly Lord Sheffield, in a pamphlet, that at- tracted great notice. And, undoubtedly, without the alarm caused in the governments of Europe by the French revolu- tion, that led them to consider every reform an innovation, we should already have had a much greater freedom of com- mercial, and, perhaps, also political institutions in the old world. The commercial regulations of these instructions of Congress of 1784 differ little from the doctrines of the arm- ed neutrality, a short time before that period in high repute, but then falling into decay.* * The first administration under the constitution wns difsposed to maintain the same system. \Ve shall quote a remarkable passage from a report of the Secretary of State for the yesr 'i>2. " Instead of embarrassing commerce under piles of regulating laws, duties, and prohibitions, could it be relieved from all its shackles, in all parts of the world, could every country be employed in producing that, which nature has best fitted it to produce, and each be free to exchange with others mutual surpluses for mutual wants, the greatest mass possible would then be produced of those things, which contribute to human life and human happiness ; the numbers of mankind would lie increas- ed, and their condition bettered. Would even a single nation begin with the United States this system of free commerce, it would be ad- visable to begin it with that nation ; since it is one by one only, that it can be extended to all. Where {||Pcirrumstances of either party ren- der it expedient to levy a revenue, liy way of impost on commerce, its freedom might be modified in that ])articular, by mutual and equiva- lent measures, preserving it entire in all others. Some nations, not yet ripe for free comnierco in ull its extent, might still be willing to modify its restrictions and regulntions for us, in proportion to the ad- vantages, which an intercourse with us might offer. Particularly, they may concur with us in reciprocating the duties to be levied on each side, or in compensating any excess of duty by equivalent advan- tages of another nature. Our commerce is certainly of a character to entitle it to favour in most countries. The commodities we offer are either necessaries of life, or materials for manufacture, or convenient TREATY OF '94 WITH KNOLANT). m Great anxiety naturally existed in America on the subject of commercial intercourse. The commissioners, that made the treaty of peace, were empowered, as has already been said, to conclude a commercial convention. They did not succeed in that object ; for Great Britain manifested uncom> mon reluctance to take any other step iii her diplomatic re- lations with America, than to acknowledge the independence of the country. In the meanwhile, the nation rushed into a most ruinous commerce with England, that in a short time added infinitely to the alarming evils the war and the weak- ness of the confederacy were daily causing. The very ear- liest measures were adopted, however, by the government to obtain a formal protection for the trade of the country ; and on the 1st of May, ten days only after the ratification of peace. Congress ordered a second commission to be pre- pared for Messrs. Adams, Franklin and Jay, or either of them, to enter into a treaty of commerce with Great Britain, But this commission appears to have accomplished nothing. A commission of a subsequent date was intrusted to Messrs. Adams, Franklin and Jefferson. We find a letter from them, of March 26, 1785, to the Duke of Dorset, British minister at Paris, informing him that they were authorized to treat with England on the subject of commerce. His ror ply is dated the same day, and contains the following singu- lar enquiry : — " Whether they were commissioned by Con- gress, or their respective states, for it appeared to him that each state was determined to n)anage its own matters in its own way." Mr. Jefferson and Mr. Adams held several con- ferences in London, in the spring of '86, with Lord Caer? marthcn, in reference to commercial regulations. The commission of the year '83 not having succeeded in concluding a commercial convention, John Adams of Massa- siibjects of revenue ; and we take in exchange, eitlier manufactures, when they have received the last finish of art and industry, or mere luxuries. Such customers, too, whose demands, increasing with their wealth and population, must very shortly give full employment to the whole industry of any nation whatever, in any line of supply they may get into the habit of calling for from it." Mi 158 TREATY OF '94 WITH ENGLAND. chusetts was chosen in February 1785 minister plenipoten- tiary to the court of St. James ; the first envoy sent to Great Britain by the United States.'**' Mr. Adams arrived in England in the spring of the same year, and his first note, dated Bath Hotel, May 2G, 1785, is in these words : " Mr. Adams hns the honour to acquaint the Right IIououDihle the Mnrquis of Cacrmarthcn, that he is just arrived in town with credential? from the United States of America, and desires to be in- informed nhat hour he may have the honour of payings his respects to his Lordship." " Grosvenor Square, May 27. — Lord Cacrmarthcn presents his compliments to Mr. Adams, and shall be glad to see Mr. Adams this day about one o'clock in Grosvenor Square, or at the ollice in Cumberland Itow about four o'clock, which ever is most convenient to Mr. Adams." These notes were immediately succeeded by the two fol- lowing : " St. James, May 27, '85. — Sir, I forgot to mention to you to day, when you did me the honour to call upon me in Grosvenor Square, that it is customary for every foreign minister to send the Secre- tary of State a copy of the credential letters, they are directed by their sovereigns to present to his Majesty and the Queen. With regard to the superscription, I find the credentials of the ministers from the States' General of the United Provinces are only ad- dressed, ' Au Uoi de la G. B.' I believe I did mention to you, Sir, * On the subject of this appointment we have great pleasure, for various reasons, in taking this opportunity to introduce a passage from n letter of Mr. Jay (May 30, 1783) from Paris to the President of Con- gress : — " It cannot, in my opinio i, be long before Congress will think it expedient to name a minister to the court of London. Perhaps my friends may wish to add my name to the number of candidates. If that should be the case, I request the favour of you to declare in the most explicit terms that I view the expectations of Mi*. Adams on that head as founded in equity and reason, and that I will not, by any means, stand in his way. Were I in Congress I eliould vote for him. lie deserves well of his country, and is very able to serve her. It ap- pears to me to be but fair, that the disagreeable conclusions, which may be drawn from the abrupt repeal of his former commission, should be obviated, by its being restored to him." THRATY OF '94 WITH ENGLAND. 159 (hut credential letters nre ulwaj'S ilelivcrcti, scnicil, into his Ma- jesty's 'landi*. "1 am, Sir, &c. " CAERMARTHEN. "JoriN Adams, Esq., &c. &c. &c.'* " London, M.iy 20, 'C5. — My Lord, I have received the letter your Lordship did ine the honour to uritc me yesterday, and have enclosed a copy of the credential letter, 1 am dirccied by my bovc- ruigii to present to his Majesty. I am so unfortunate as not to have any for the Queen. IJut 1 know the sentiments of my coun- try and of Congress so well, as to ho sure, that it is not owing to any want of respect to her Majesty ; — probably it was merely the want of information, that there ever had been a precedent of it. " I beg leave to propose to your Lordship, that the superscrip- tion should be, to his Majesty George the 3d, King of Great Britain, France and Ireland, Defender of the Faith, &c. If your Lordship should not disapprove of this, I should prefer it to the address of the United States' Provinces, as being more respectful." Shortly afterwards, Mr. Adams was presented to the King and Queen, and we have it in our power to recite an au- thentic version of what was said on that remarkable and in- teresting occasion, as poetical and picturesque, considered as one point of view, both of the past and future, as any thing that has taken place : " May 20. — This morning Sir Clement Cotterell Dormer, master of the ceremonies, called on me to inform me, that he was ordered to attend me to Court on Wednesday, as he did all foreign ministers at their first presentation." "Agreeably to previous arrange- ments, the master of ceremonies called on mc at one, and ac- companied me to the Secretary's oflice, whijnce Lord Cacrmarlhen accompanied me to the I'alacc, and was in a very short time intro- duced to the King's closet, when with the usual ceremony 1 pre- sented my letter of credence to his Majesty, and after a few min- utes conversation retired. 1 have only time to observe, that I was introduced with every necessary formality, and received with some marks of attention." " The master of ceremonies attended me in the anti-chamber, while the Secretary of State went to take the commands of his Ma- jesty. While I stood in this place, where, it seems, all ministers (••/- 160 TREATY OF '91 WITH KNOLAND. ii Mnnil upon Biich occn^iions, nlwnys attended hy the mnslcr of rore- monies, the room, very full of ministers of stnte, bishops and nil other sorts of courtiers, as well as the next room, which is the King^s bed chamber, you may well suppose, that I was the focus of nil eyes. I was relieved from the embarrassment of It by the Swedish and Dutch riinirttcrs, who came to mc and entertained mo with H very agreeable conversation the whole time. Some other gentlemen, whom I had seen before, also came to make their com- pliments to me, till the Marquis of Caormarthcn returned and de- sired mc to go with him to his Majesty. I went with his Lordship through the levee room into the King's closet. The door was shut, and I was left with his Majesty and the Secretary alone. I made the three revorencos, one at the door, another about half way, and the thirc'l before the presence, according to the usage established at this and all the northern courts of Europe, and then addressed myself to His Majesty in the following words: ' " Sir— The Unitt^d States of America have appointed me their minister plenipotentiary to your Majesty, and have directed me to deliver to your Majesty this letter, which contains the evidence of it. II is in obedience to-their express commands, that I have the honour to assure your Majesty of their unanimous disposition and desire to cultivate tlie most liberal and friendly intercourse be- tween his Majesty's subjects and their citizens, and of their best wishes for your Majesty's health and that of the royal family. The appointment rf a minister from the United States to your Ma- jesty's Court will form an epocha in the history of England and America. 1 think myself more fortunate than all my fellow citi- zens in having this distinguished honour to appear in your Majes- ty's presence in a diplomatic character, and shall esteem myself the happiest of men, if 1 can be instrumental in restoring an entire esteem, confidence and aiTection, or, in other words, the good old nature and the good old humour between people, who, though separated by an ocean and under different governments, have the same language, a similar religion, and kindred blood. 1 beg your Majesty's permission to add, that, though I have some time before been intrusted by my country, it was never in my whole life in a manner so agreeable to myself. The King listened to every word, and heard me with dignity, but with apparent emotion ; — whether it was the nature of the interview, or my sensible agitation (for I felt TREATY or '91 WITH ENOLAlfD. 161 more Ihnii I diil or C(>vjUI express) (hut touched him, I cannot My, but lie wns much )il1'(.cto(l, und aiistvcred mc with more tremor than I hud spoken with/* " Sir, — The wliole of this Liisitioss h so extraordinnry, that the teclings yuii discover un tlie occasion iippenr to mc to be just and proper. 1 wish, sir, to be clearly understood, before 1 reply to the obliging sentiments you have expressed in behalf of the United States. I am, }'ou may well suppose, the last person in England, that consented to the dismemberment of the empire, by the inde- pendence of the new states, and, while the war was continued, I thought it due to my subjects to prosecute that war to the utmost. I3ul, sir, I have consented to the independence, and it is ratitied by treaty, and I now receive you as their minister plenipotentiary; and every attention, respect and protection, grunted to other ple- nipotentiaries, you shall receive at this court. And, sir, as I was the lust person that consented to the independence of the United States, so I shall be the last person to disturb, or in any way in- fringe upon, their sovereign independent rights ; and 1 hope and trust, that from blood, religion, manners, habits of intercourse, and almost every other consideration, the two nations will continue for ages in friendship and confidence with each other." In the course of the next month, Mr. Adams proceeded directly to the object of his mission. He held several con- ferences with the Secretary of State ; and, early in the dis- cussions, appears to have imbibed tlic opinion that the pros- pect of a satisfactory arrangement was altogether hopeless. " Though I have been received here," the minister observes in a letter June 25, '•^ and treated with the distinction due to the rank and title you have given me, there is, nevertheless, a reserve, which convinces me, that we shall have no treaty of commerce until this nation is made to feel the necessity of it. Cut bono? they cry; to what end a treaty of commerce, when we are sure of as much American trade, as we have occasion for without it." "July 27. It is very apparent that we shall never have a satis- factory arrangement with this country until Congress shall be made by the States supreme in matters of foreign commerce, and trea- ties of commerce, and until Congress shall have exerted that su- premacy with a decent firmness." ■ ^ VOL. I. 21 162 TREATY or *94 WITH ENGLAND. " August 6, '85* The spirit of the times is very different from that which you and I saw, when we were here together in the months of October and November '83. Then the commerce of the United States had not fully returned to these kingdoms. Then the nation had not digested its system, nor determined to adhere so fully to its navigation laws. Now the boiist is, that our commerce has returned to its own channels and can flow in no others. Britain has ventured to begin commercial hostilities. A jealousy of a naval power is the true motive, which actuates them. They consider the United States the most dangerous rival they have in the world. They think they foresee, that if the United States had the same fisheries, the same carrying trade and the same market for ready built ships, they had ten years ago, they would be in so respecta- ble a posture and so happy in their circumstances, that their own seamen, manufacturers, and even merchants, would hurry over to them." • In July Mr. Adams passed through the ceremony of com- municating to the British government an outline of a com- mercial convention, embracing the usual stipulations of our treaties, and an article forbidding the practice of impress- ment. We mention this fact for no other purpose than to preserve the course of the narrative. It was not to be ex- pected that in 1785, a great impression could be made on England by propositions concerning free ships — free goods — the fla^' and the property, or exemption from confiscation of contrabands. Again, in August the American minister went over the whole business of a commercial treaty with Mr. Piiit, just then brought into public affairs in a most conspicu- ous manner, and afterwards so celebrated as the premier of Great Britain. This examination included the entire dis- t:ussion of the questions of debts, interest, colonial trade, negroes, outposts and boundaries. In the course of the ne- gotiation, the favourable opinion Mr. Adams had formed of Mr. Pitt in the outset of the affair, yielded to the influence of considerations and circumstances, from which a British minister, in the actual condition of that government, could hardly be expected to disencumber himself. We extract a single remark. " Mr. Pitt commenced his career with sen- TREATY or '94 WITH ENGLAND. 163 timents rather liberal towards the United States ; but since he has been prime minister, he has appeared to have giv^n ear to the Lord Chancellor (Thurlow) Lord Gower, Mr. Dundas, Mr. Jenkinson, so much so, as to have departed from his first principles." Mr. Adams, by no means, concealed the just disappoint- ment he suffered, in having failed to conclude some sort of commercial convention. The mortification was the more severe and vexatious, from the knowledge he fully possessed how extremely his own country was depressed, in conse- quence of the uncertain condition of its trade. We think, however, that no great censure ought fairly to be attributed to the European states for declining to enter into diplomatic arrangements with the confederacy ; nor are we disposed to acknowledge the soundness and expediency of the retaliatory system, recommended by the American minister. In the state of the country retaliation was the very last weapon, to which the United States should resort. " In short, every article which can support a shipwright, a ship, a seaman, a whaleman, or cod fisherman, a rum distiller or a sugar house, appears to be struck at with a deadly blow, and a settled plac *o deprive us of all our carrying trade, the carriage of our own produce, as well as theirs, appears decidedly to be adopted by the present ministry, and no party, no man has yet dared to de- clare himself of another opinion. You must exclude and prohibit in your turn, and confine your exports to your own ships." This is not even good advice for a country, possessing some portion of capital; but in 1785 to what a condition would prohibition anti exclusion have reduced us ? The for- eign trade of that day was the only thing that gave a start to our resources, and relieved us gradually from the terrible pressure of our own poverty, embarrassments and disaffec- tion of a thousand kinds. We have much greater satisfac- tion in reciting the early opinions, and in some degree pre- dictions of Mr. Adams on a subject, always of uncommon importance, now of extreme interest, and which, for a time, was far from possessing the favourable countenance of the •,-l 1 I 164 TREATY OF '94 WITH ENGLAND. nation. The sentiment relates to the navy, delivered in the yeai- '65, and though, savouring somewhat of a sanguine temperament, has a solid foundation in the native strength and habits of the people. The reader will also observe, that this 'brilliant institution owes its existence to a system of commercial intercourse, precisely opposed to the one recom- mended in the following passage : " If we should get over our aversion to monopolies and exclusions, and adopt the selfish, unsocial principles of the European nations, particu- larly France and England, we should astonish the world with a navy in a few years, not more than eight or ten, equal, perhaps, to the third maritime power in Europe. European statesmen know it better than we do, and dread it more than we desire it." •• - But the English government does not appear to have paid much attention to America the first five or six years after the peace. They were occupied, entirely, with domestic affairs ; — in renewing their ancient alliances with Holland, Prussia, and other governments of the continent, disturbed by the revolution war — in concluding a commercial conven- tion with France — in regulating the trade of Quebec and Ireland — and, besides tiie customary topics of India and the catholics, two unexpected and very laborious subjects, the establishment of a regency, and the impeachment of Warren Hastings, engrossed a great deal of time and deliberation. England, taking advantage of the general calm, to repair, as rapi'^'v as she could, the disasters of the war, (not, to be su^'*, ■ eparatory to the tremendous contest, in which shp was fiuout to be involved, far more terrible, and in the end fortunate for her, tiian the one from which she had just emerged,) saw America struggling, and at one time nearly overpowered, with her own domestic didicultics. At this period, it could not be said the American revolution was consummated. Europe, probably, supposed this country was destined to go through the agony of a civil war, a con- dition of society, heretof()re a necessary consequence of any great change in the form of governrnoiit, lUit this evil America escaped, either because the country was exhausted. TREATY OF '94 WITH rNOLAND. 165 or from the character of the people, long accustomed to self^ government, and not bewildered by independence. The in- terval, from the peace to the establishment of the present federal constitution in 1789, is properly the second period in the history of the revolution, during which all the ele^ ments of a civil war were consumed in the inefficient but harmless conflicts of the confederation with the states. The treaty of peace, much as it effected, still left many causes of great uneasiness particularly harassing to the Ameri-^ can government and people, and to that portion of the sub? jects of the mother country, who had entered into her armies, or abandoned the colonies and their cause. The British go- vernment took their part, though at first without the appearr ance of much zeal or irritation ; — sent no minister to America during the time of the confederation ; refused to agree to any commercial arrangement whatever; and contented itself with the barren but provoking satisfaction of holding, contrary to the treaty, the north and western ports. To make all the ob- jects of Mr. Adams' mission intellij^ible, it will here be nc^esr sary (before proceeding on that topic) to give a brief account of the difficulties in f iTiUing the terms of the treaty, that arosq between the United Slates and Great Britain, only removed finally by the treaty, that makes the subject of this chapter. The ninth article of the act of confederation and perpetual union conferred upon the United States, in Congress assem? bled, the sole right and power of making treaties. This power, though limited and specific, is full and perfect in its kind. Ii) making treaties, the states did not possess a concurrent juris? diction, though a treaty properly made, like any other act the Congress were aulhorizcd to perform, was a part of the law of the land, a contract with another power, competent to make such contract. The same body, to whom the confederation confided the power of making treaties, necessarily possessed the right of explnining, interpreting and enforcing them. The states could not make treaties ; they could not judge of them. A treaty, when duly ratified, being part of the law, all doubts, that arose rcspectin;;; it between individuals, became simple ju- dicial questions. But there was then in the country no court 166 TRBATY or '94 WITH ENGLAND. erected by the confederation. The duty, therefore, of inter- preting and enforeina; the provisions of a treaty, under the ^c- neral restriction, just mentioned, fell to the state courts. This was the situation and condition of the government ; this the extent and nature of its authority in regard to foreign relations, conferred upon it by the celebrated articles of confederation and perpetual union. Congress faithfully and punctually ex- ercised, in regard to the British treaty, all the authority with which it was legitimately invested. On two occasions, the first in '83, and again in '87, it unanimously recommended to the states, and it could do no more, (the British commissioner was aware of this fact when the treaty was made) to comply speedily and exactly with that portion of the instrument that concerned creditors and royalists ; though the article was no part of the law of the land, for it contained only a recom- mendation. But the states did not yield an immediate at- tention even to the recommendation ; and, in vindication of {themselves, they said that grievous infractions of the treaty were committed by the other party, — that the garrisons were •not withdrawn with convenient speed, the English still hold- ing the posts of Michilimachinac on lake Michigan, Detroit, Fort Erie, Oswego and Niagara, Oswegatchie on the St. Law- rence, Point au fer and Dutchman's Point on Lake Champlain, . — that British officers exercised jurisdiction over the country in the vicinity of those posts — and that a large body of negroes, the property of American citizens, had been embarked at New- York against the special remonstrance of the American com- missioners. Indeed, Lord Caermarthen in a letter, dated February 28, '86 to the American minister, directly admitted that the fourth article had been violated ; and fully justified the proceeding on the ground, that infractions had been com- mitted by the Americans, particularly as it respects the re- covery of debts. But no foundation appears to exist for the charge, at that time repeated with great earnestness, and, indeed, one of the principal sources of complaint on the part of England, that the integrity and independence of the American courts were ob- noxious to reproach. The uprightness of their decisions can TREATY OP '94 WITH ENOLAITD. 167 by no means be impeached. There was undoubtedly a great popular excitement against British creditors, which in the end extended itself to creditors of all descriptions. This cir- cumstance deterred some individuals from bringing actions. All the evil consequences men feel, who are compelled from duty or situation to pursue unpopular measures, unquestiona- bly befell British creditors, just after the peace ; they suffer- ed all the inconvenience, met with all the delays and obsta- cles that a highly heated public sense could oppose to them. This was not a violation of any provision of the treaty : it was an evil, along with many others, the war had brought upon them. Rut unless the court or the creditor was over- awed and arrested in their proceedings by popular tumults, or threats, or commotions, we are not aware that any infrac- tions of the treaty can justly be complained of. Any man who undertook to recover his lawful debts immediately after the peace, certainly rendered himself exceedingly unpopular. This state of things produced a serious rebellion in one part of the country. It was also impossible, that the article con- cerning the recovery of debts could have been immediately fulfilled by the Americans. The distress for money was extreme ; it had been so for three years before the termina- tion of the war. The country rushed instantly, and with great avidity, into an extensive foreign commerce, which did but increase the mischief. The opposition to paying the foreign as well as domestic debts, undoubtedly arose, in a great mea- sure, from the lamentable, and apparently increasing poverty of the people. It was not an opposition by any means direct- ed exclusively against the treaty ; but all persons in the situa- tion of creditors suffered equally, and for similar reasons. At the same time the foreign creditor was more obnoxious to popular clamour; for not only the odium of the war was at- tached to him, but the demands of this class of persons were very great. And they were pressed with a zeal which to the debtor appeared somewhat harsh and unreasonable, though the foreign merchant probably felt very differently on the subject. At any rate, it is difficult to blame men, €i 168 TREATY OF '91 WITH ENGLAND. ■ -s •' ! •...( who strive to get their just debts in the form prescribed by law.* * The strict lavv of nations authorizes tlic confiscation of debts and all other incorporeal things belonging to aiicn enemies. (Vatt. vol. ii. p. 323.) The modern practice suspends, but docs not annul, the right of an enemy to a debt. " It is a principle of law," says Sir Wm. Scott, (1 Rob. Rep. 200.) " that during a state of war, there is a total inabili- ty to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of an alien enemy carries with it a disa- bility to sua or to sustain, in the language of the civilians, a persona standi in judicio. The peculiar lavv of our own country applies this principle with great rigour. The same principle is received in our icourts of the law of nations ; they arc so far British courts, that no hfian can sue therrin, who is a subject of the enemy, unless under par- ticular circumstances that pro hac vice discharge him from the cha- racter of an enemy ; such as his coming imder a flag of truce, a carte), a pass, o: some other act of public authority that puts him in the king's peace pro hac vice. " This short statement sufficiently testifies what is the law on the subject of withholding the debt during the war. The following deci- sion will evince, what is the law on the subject of restoring the debt lit the return of peace. A petition came on in the Court of Chancery in the matter of Boussmaker, a bankrupt, praying that the petitioner might be admitted to prove, under the conmiission, a debt which the commissioners refused to admit, upon the objection, that the credit- ors, applying to prove, were alien enemies. The Lord Chancellor ex- plained the distinctions of the law and its principles on this important question, whether tlie right of an alien enemy was destroyed or only suspended by war. * If this,' said his Lordship, ' had been a debt, aris- ing from a contract entered into with an alien enemy during war, it could not possibly stand ; for the contract would be void ; but if the two nations were at peace at the date of the contract, though, from the time of war taking place, the creditor could not sue, yet the con- tract, being originally good, upon the return of peace the right would revive : it would Ijc contrary to justice, therefore, to confiscate this dividend. Thoiigh the right to recover is suspended, that is no reason why the fund should be divided among the other creditors. The point is of great moment, frojn tlio analogy to the case of an action. The ]iolicy of avoiding contracts with an enemy, is sound and wise ; but whore the contract was originally good, and tiic remedy is only sus- TREATY OF 94 WITH ENOL.ANU. 169 It now remains to speak of interest, another subject of complaint, on the part of the British .t was the custom of the English merchant before the war, to allow the American one year's credit, and, after the expiration of that time, in- terest was charged. The treaty made no provision for in- terest ; it refers only to bona fide debts, and they remained in their ante bcUum state. It rested, therefore, with the courts aloue, whether interest should be allowed. Wherever pendcd, the proposition, that therefore the fund should be lost, is very different." ' Great Britain did not meet her colonies in war as she would have met an independent European power. Some individuals were declared rebels, and a price was set upon their heads in pubUc proclamations. Otiiers, and in considerable numbers, joined the English, and waged a cruel warfare against their own countrymen. The nature of this contest would, therefore, have justified recourse to extraordinary means fur carrying it on. A peace to an independent nation, even when it is discomfited, seldom costs more than a colony or a {gw square miles of frontier. But peace to the Americans with- out independence, would have been annihilation. If England had succeeded, the laws of war would have justified her, not only in punishing the principal authors and actors in the scene, but in confis- cating their property, in levying the expense of tiie contest upon the colonies, and in subjeccing them to great disabilities in future. To escape the infinite evils of such a deplorable condition, the United States would have found ample apology in adopting many severer mea- sures than in an ordinary war between two independent nations would have been tolerated. The estates of the royalists were confiscated. No blame can be attached to this proceeding. The same reasoning does not at all apply to the " debts," but different considerations would, perhaps, have warranted the confederation in refusing to make provi- sion for them. We think, howevor, that the state legislatures possess- ed no right whatever to annul or conliscaic debts due from their own citizens to the bona fide enemy nr Britisii subject. All the rights and powers appertaining to the act^ of u .w, peace, or of treaties, were con- fided to the United States, in Coni^ress assembled. To confiscate the property of an enemy, the subject of a foreign government, is, there- fore, an act of sovereignty, and in regard to an enemy, the states in their separate capacities had no sovereignty. The thirteenth part of a nation cannot exercise a power, which belongs only to the thirteen parts united." VOL. I. 22 17b TREATY or '94 WITH ENGLAND. ;,! F it entered expressly into the contract, it, of course, was paid ; it was part of the bona fide debt. If the government could not confiscate the debt, they could not confiscate the interest. But in other cases, it was the duty of the jury to judge if war, or other circumstances, would justify the withholding of interest. The war was one of necessity, and it was thought by those who waged it, a just defence of their precious rights, a measure to which they resorted only in the last extremity. During hostilities, the country itself, was not only exposed to the very worst evils of that state of things, but was debarred from the whole of its foreign commerce ; it was left in a condi- tion of extreme poverty. Should interest, therefore, be allow- ed on a debt, that could not be paid, not solely on account of the poverty of the debtor, but in some degree on account of the circumstances that led to that state of poverty ? Even inter- course between the creditor and debtor was forbidden by the acts of the British Parliament. Lord Cacrmarthen said in conversation that, by the construction of the law of England^ it was high treason in a creditor of Great Britain to receive a remittance from his debtor in America during the war. In assessing interest, therefore, the circumstances attending the war and the state of the country after the peace, might justly be taken into the account, and mitigate the amount allowed. Juries were compelled to exercise a discretion in apportioning it. The law, itself, in all countries and the customs of mer- chants contemplate and exact a variety of exemptions. They are all founded in justice and common sense, and present an additional reason why such cases, as are not accompanied with similar conditions or circumstances, should not be enti- tled to equ'J privileges. We confess we are not of the opinion that war necessarily stops interest amongst traders or merchants, when for a great number of years it has been the custom to allow it ; and if in ordinary warfare, it has become the practice of civilized people, whatever may be the law of nations, not to ronfiscate debts due to individuals, there ap- pears to be no good reason for confiscating the interest, when it is equally the practice of such people to allow it in their intercourse with each other. TREATY OF '94 WITH ENGLAND. 171 Having already gone at greater length into the violations of the treaty uf 1783 tliuii we intended, we shall spare the render the details of the intricate questi^tn, which govern- ment was guilty of the fust violation. Lut the correspond- ence on this subject was attended with no other result than to confirm the parties in their original impressions. England refused to evacuate the posts till all the impediments to the recovery of debts were removed, and refused to pay for the slaves carried off by Lord Dorchester on the ground, that as slaves were personal property by the laws of the states, they had the same right to them as to any other article of person- al property, taken in the course of the war.* Mr. Adams still remained at the court of St. James, but no progress was made in the negotiation, nor did the British government return the customary diplomatic courtesy of sending a minister to the United States, though it was thought necessary to give reasons for this seeming negli- gence. His Lordship (Lord Caermarthen) told me yester- day (June 1786) " that a minister plenipotentiary will cer- tainly be sent to Congress ; — that it was not from any cold- ness or want of respect for the U. States that it had not al- ready been done, but merely from the difficulty of Inding a proper person ; that he had received many applications, but generally from persons, he was sure, would not be agreeable to us." Congress again, in '87, sent instructions to their minister to conclude a convention with England. The substance of part of these instructions was afterwards incorporated into the treaty agreed on by Mr. Jay. The entire inactivity and apathy of Mr. Adams' position were, in the autumn of '87, relieved by some slight warlike symptoms in Europe, which, for the moment, passed off in menaces, but the train was laid. It is quite remarkable, how singularly the American and French Revolutions were combined, and upon what highly charged mines stood the * Before Bryan Edwards' act of '97, to repeal the act making ne- groes, "real assets," slaves iii all the British West India islands were chattels. TREATY OF '94 WITH ENGLAND. '.■: •)■ negotiators of the general peace of *83. The former was ccrlahily disconnected with any lOuropean causes or move- ments ; — it sprung solely from the colonies themselves ; but the French Revolution belonged to a regular series, and formed the second event in that course and progress of hu- man afl'airs. The distant and faint approaches of the war were distinctly discerned, and, as is the case in most terri- ble calamities, there were moments, when the fatal signs dis- appeared, and men persuaded themselves, that they had yielded too hastily to a propensity, somewhat common to human nature. In 1787, the Parliament of Paris cried aloud for the States General, dissensions, accrmpanied with blood-shed, broke out in Holland,* and the ambitious designs of Catharine on Turkey developed themselves. On a tri- umphal arch at Chcrson in the Crimea, under which the Empress and her oriental train passed in their gorgeous progress into the East, Potcmkin caused to be inscribed, — *' This is the road, that leads to Hyzantium," — an inscrip- tion, that a Roman might well have written ; and though that invisible, indescribable agent, the balance of power, has, hitherto, stood with a flaming sword on that highway, yet, we believe, the legend of the arch at Cherson has disturbed the dreams of every crowned head in Europe from that hour to the present. * ' * No doubt can exist tlmt these disturbances were fornionted by France. We liuve met with a letter (March 15, 178G,) from M. de Vergennes to the French minister at tiic Hague, M. de Verac, per- fectly explicit and satisfactory on this head ; — it is as follows : " The King will concur, u = far as he can, towards tlio success of this matter, and you will request on his part, the patriots to conununicate their plans, views and wishes ; they may rely on his j)rotection ; they may depend on this the more, as we do not pretend to dissemble, that if the stadfholder recovers his former influence, the Knglish system will not fail to prevail. The Kiusi; authorizes ycu to act in concert Avith the patriots. It is to be presumed that this language, supported with energy, will impose on the audacity of tlui ''.nglonianians, and that the Prince of Nassau will apprehend some risk by provoking the rcsent- }ucnt of his Majesty." *' TREATY OV '91 WITH EIVOT.AND. 173 In October 17H7 Mr. Adams wrote to the Government, — " It is my duty to be explicit on this subject (the prospect of a war in Europe) and to say, that though the British Government may pictcnd atid even sincerely endeavour to avoid a quarrel with the United States, at the commence- nient of the war, yet if they should obtain any signal suc- cess at first, which is not improbable, there will arise such a spirit of domination in the nation as will stimulate hostilities against us." The warlike preparations of France and Eng- land were discontinued the same autumn, but the flights of the raven were still a sinistra cornu, and those fearful indi- cations, portending terrible disasters, so well known to peo- ple, who live in countries, subject to great natural convul- sions, were observed oil along the political horizon. At length, the sides of the earth opened, and this country, re- lieved from the dangers of war, began her great course of prosperity. Having brought Mr. Adams' mission to a close, we shall give an account in his own words ol his last acts in Eng- land — "Dec. '87 — No answer has yet been maile to any of my letters or memorials to the minister, nor tlo I expect that any thing will be done, while 1 stay. There are reports of an intention to send a minister to iis, and a Mr. Lislon, now at Madrid, is mentioned. But nothing- has been said (o me on the subject for some time." " Feb. 1788 — At the last conference. Lord Caermarthen expressr ed a wish, that this country had some sort of a treaty of commerce with the United States, that it might no longer be necessary to take new measures from time to time. His Lordship also said, "I pre- sume, Mr. Adams, that the states will immediately adopt the new constitution. I have read it with pleasure — it is well drawn up." All this was to signify to mo, what has all along been intimated, that there is not, as yet, any national government, but as soon as there shall be, the British Court will treat with us. On this sub- ject, France and Holland furnish as many arguments as England. If thai constitution is not adopted, Mr. Jefferson must soon follow my example, and return homo, and what will be the consequence of all li e clamour of all the ollicers in France, who are creditors. ^, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I Z us. 12.0 1.25 i 1.4 I V f. ^ A ># V '/ Photographic Sciences Corporation 23 WIST MAIN STRiET WCBSTER.N.Y. 14580 (716)872-4503 \ iV k \ ^ * 174 TREATY OF '94 WITH ENGLAND. I m I: of all the notables, who tnn)' be plensed to cnst reflections, and of all our creditors in Holland, for want of payment of interest and principal, as they become due, must be left to every American citizen seriously to consider." "Feb. 21, '88 — Yesterday I had my audience of leave of his Mfijesty. The substance of my address to his Majesty was no more than a renewal of assurances, in behalf of the United States, of their friendly dispositions, and of their continual desire to cultivate a friendly and liberal intercourse of commerce — thanks for his protection and civilities of his Court, and good wishes of prosperity to his Majesty and his Royal Family, his subjects and dominions. The King's answer was in these words, — " You may, with great truth, assure the United States, that whenever they shall fulfil the treaty on their part, I, on my part, will fulfil it in every particular. As to yourself, 1 am sure, I wish you a safe and pleasant voyage, and much comfort with your family and friends." We have now reached the period, when the confederation was about to be dissolved. In the way of a treaty, nothing was done with England by that body after 1783, and we shall see, that was, in reality, the last treaty concluded by the confederation with any European state. The Federal /constitution was established in the year '89 with such pow- ers as necessarily removed most of the objections made to the confederation, though this circumstance does not appear to have produced any effect on Great Britain. That gov- ernment, perhaps, thought it prudent to wait till the expert* ment of the stability of the second union was, in some de- gree, tried. We cannot suppose England was still indiffe- rent to a commercial arrangement, though it will readily oc- cur, that just at the same moment a revolution was termina- ted In the new world, another, that led to a more immediate and extensive temporary derangement of society, broke out in one of the most accomplished nations of the old. It seemed doubtful in which of these Revolutions Great Britain was most interested. As our relations with England were more affected than with any other power by the establish, ment of the Federal Government, we shall take this oppor- tunity to introduce, from a letter of the Secretury of State, TREATY OF '94 WITH ENGLAND. 175 Mr. E. Randolph, written in August 1794 to one of our ministers abroad, some general remarks, on the political state of things in this country, during the second term of the first administration : . ^ " The parties, which originally sprung from the constitution, when first proposed for discussion, seem to have been long ago extin> guished, and the names of federalist and nntifcderalist are hardly ever pronounced to signify existing divisions of sentiment. But party, itself, cannot be said to be effaced. Some leading men en- tertain deep rooted suspicions of others ; these appear in their conduct and declarations, mutual charges of designs to reduce the government-to iropotency, and to exalt it to a very high tone, are too often heard, and a geographical distinction begins to prevail between the political opinions of the South and North. Its issue cannot be foreseen : the particulars and names, connected with these jealousies, and the charges of improper designs on the one side and the other, you will not expect me to specify. I have ventur- ed to say thus much, merely because you ought to know it, and be- cause this information will serve as a clue to many points of intel- ligence, which may reach you. I will only add, that it would be a source of happiness to me, if I could persuade myself, that parties in a combined Government like ours, would be, as they are in some separate Governments, nothing more than sentinels over each other, and incapable of convulsing the machine." ^^ " " The energy of the Government is considerable, — confidence, in the integrity and wisdom of Mr. Washington is, of itself, a bulwark to his administration, although it has been often criticised and roughly handled. But in the Legislative acts, and particularly in those, which authorize the President to draw forth the militia in case of insurrection, and the land and naval forces in certain other cases, he possesses considerable resorJs of power." " Our revenues, not a shilling of which are drawn from a land tax, are adequate to all the objects, for which they have been collected, whether we contemplate the stipulations for the foreign debt, the do- mestic debt, or other articles of internal expenditure. Punctuality in payment has rendered a just claim on the United States estimable in the eyes of every body. Our stocks, indeed, fluctuate, as the stocks of every other country ; but their stability is evidenced in their very fluctuation. For notwithstanding the great distance between the 176 TREATY OF '94 WITH ENGLAND. 1 1 price, to which they were once by various artifices ioflated, aod to which they once fell, must have impressed the world very un- favourably — notwithstanding at every session of Congress hostility is shown to the funded debt — notwithstanding immense bankrupt- cies have occasionally brought immense quantities of it to market, those, who could afford to live upon the interest of their capital, have been extremely easy in having their property vested in stock — In short, the funded debt is, in my opinion, as stable as the Gov- ernment itself." " At the time, when Mr. Genet was in his inflammatory course, he prompted the erection of certain societies, called democratic. No doubt he was led to the idea by the remembrance of those institu- tions, which have so eflicaciously turned the wheel of French poli- tics. At first, little notice was taken of these democratic societies, but they have certainly since multiplied, and, with great censorial boldness, have struck at men and measures. By what means they have increased in number and vigour is a matter of speculation, some thinking, that they have been fostered by the apprehensions, which have been expressed of them ; others, that the progress of public discontent has produced the effect ; others, that the pride of being guardians of liberty has enlisted many in the corps. It has been, even, expressed by some intelligent men, that sooner or later they will shake the Government, and it is supposed that some disquietude has been caused by their influence. It is sup- posed by others, equally intelligent, that their right to assemble cannot be questioned ; that although, while Government is clearly in the hands of the people, who may mould it as they will, no self constituted body should undertake to direct its movements — the people, if happy, will check their excesses. Another description of men go further, and frequently urge in argument the operations of the democratic societies, as reasons for adding force to the ex- ecutive arm." Mr. Adams, having been elected Vice President under the new constitution, left London, and was succeeded in that mission in 1789, by Gouverneur Morris of New Jersey, as comiuissioner. In the course of the year '91, George Ham- mond arrived in this country, as minister plenipotentiary from Great Britain. Mr. Hammond was the first diplomatic agent sent by England to America, but he was not provided TREATY OF '94 WITH ENGLAND. 177 with powers to conclude a definitive arrangement. He was merely authorized to discuss and adjust the principal {.jints, preliminary to a final settlement. This limited power was matter of just complaint. In '92, Thomas Pinckncy, of South Carolina, was appointed Minister Plenipotentiary to Great Britain. This period is rendered exceedingly impor> tant in the diplomatic history of the country by the extraor- dinary condition of Europe. It was the beginning of a sys- tem of blockades, and oppressive acts committed by the bel- ligerents, that, together with incalculable mischief to the trade of the United States, inflicted a serious wound upon the prosperity of the country, and in the end led, after an interval of nearly twenty years unprofitable negotiation, to a war with Great Britain. We shall confine ourselves in this chapter solely to the proceedings of that government ; the public acts of France, being mentioned in their proper place. In the spring and summer of '93, Great Britain, Russia, Spain, Prussia, and the emperor of Germany, made a treaty for the purpose, among other things, of closing their ports, ''and prohibiting the exportation of all military or naval stores, corn, grain, and provisions from their ports, for the ports of France." They further engaged, " to take all other measures in their power for injuring the commerce of France," to unite all their efforts " to prevent other powers, not im- plicated in this war, from giving, on this occasion of common concern to every civilized state, any protection whatever, directly or indirectly, in consequence of their neutrality, to the commerce or prosperity of the French, on the sea or in the ports of France." The only one of these powers, pos- sessing, at all, the means of executing this treaty on the ocean, was Great Britain. And whether in retaliation of the French order of May 9th of the same year, or for purposes mentioned in the treaty above referred to, that government issued, on the 8th of June '93, additional instructions to all public and private armed vessels under its flag. We shall give the substance of this order : — '■'■ It shall be lawful to stop and detain all vessels loaded wholly, VOL. I. 23 178 TKKA.TY OF '94 WITH ENGLAND. or in part with com, flour, or meni, bound to noj port in France, or to any port occupied by the armies of France, and to send them to such ports as shall be most convenient, in order that such corn, meal, or flour may be purcliased on behalf of his majesty^s govern- ment, and the ships be released after such purchase, and after due allowance for freight, or that the masters of such ships, on giving due security, to be approved of by the court of admiralty, be per- mitted to proceed to dispose of their cargoes of corn, meal, or flour, in the ports of any country in amity with his majesty.'' A question immediately arose on this instruction, not only whether provisions were contraband of war at all, but whe- ther the doctrine could be applied to a whole country, particularly, one of the extent of France. This discussion, in the actual circumstances of the United States, whose ex- ports at that period consisted so much in the produce of their own soil, assumed an uncommon degree of importance. Th& articles, heretofore laid down as contraband of war, were not numerous ; — in most treaties they are specifically enumerated,, and by writers on the laws of nations, have generally been con- fined to the particular object of carrying on war,^^ — such artidea as come under the general denomination of military stores. These have increased in number as the art of war has be- come more perfect ; but the variety and quality depend on conventional law, and not on the primitive laws of nations^ Neither does the interest or policy of nations indicate con- trabands with certainty ; for the policy of nations is seldom permanent. On the other hand, treaties contain only the regulations of states that are parties to them- And as to these instruments, it is to be observed, that treaties of an ancient date do not mention specifically merchandise that shall be denominated contraband. But, from about 1650,*^ there are, we believe, few treaties on commerce and navi- gation, which do not prohibit the carrying of military or war- like weapons to a port or town of the enemy of one of the contracting parties. This prohibition had become, by that time, matter of very general inter-national Uw> and was in- * Martens. TRVATY OF '94 WltH BWOLAITD. 179 troduced in a variety of shapes and under numerous niodifi- cations. It is, also, evident that provisions were early made a subject of conventional law ; a fact at once ascertained by examining the collection of treaties. But it is equally evi- dent that they are far, indeed, from being placed on the same footing as military or naval stores, though in the cele- brated treaty of Utrecht, in 1713, between France and En- gland, *< naval stores even were declared free of war." On this occasion the conduct of England, both on account of her power on the ocean, and as having been the author of the instructions of June 8th, is particularly worthy of notice. We have treaties on record between that state and the Unit- ed Provinces in 1645, — with France in 1667 and 1668, — with Spain in 1713, — with Denmark in 1782, — and with Russia in 1804, — peculiarly the last act of the second arm- ed neutrality, in which provisions are by name excluded from the list of contraband.* The authority of England is, therefore, in itself sufficient to prove that provisions are not rigidly contraband by conventional law. In the ordinary in- cidents of war, provisions form only an article of trade,— a very important one, it is true ; but there would seem to be almost as much propriety in subjecting three-fourths of the whole trade of neutrals to the same liabilities. Every commodity, employed in the manufacture of clothing, may, on the same ground, be declared a contraband. Indeed, such is now the perfection of the art of war, such a vast variety of articles enter into the proper disposition of a mili- tary armament, we know not what limit could be assigned to this description of merchandise. We are well aware that contrabands cannot be specifically defined with such distinct- ness in treaties as to meet all possible cases. • " The catalogue of contrabands," says Sir William Scott, " has varied very much, and, sometimes, in such a manner as to make it very difficult to assign the reason of the variations, owing to par- ticular circumstances, the history of which has not accompanied the history of the decisions." But the definition appears broad * Martens. ^ ' ' 180 TREATY OP '94 WITH CKOLAND. and liberal enough, that an article is contraband of war, which can immediately bo employed for the purposes of war. " The king having, by his prerogative, the power to promulgate who are his enemies, is bound to watch over the safety of the state ; he may, therefore, make new declarations of contraband, when articles come into use, as implements of war, which were before innocent ; this is not the exercise of discretion over contraband ; the law of nations prohibits contraband, and it is the usus bellici, which, shift- ing from time to time, make the law shift with them. The great- est difliculty seems to have occurred in the instance of provisions, which have not \jfien held universally contraband, though Vatlel admits that they become so on certain occasions, when ^hcrc is an expectation of reducing the enemy by famine. In modern limcp, one of the principal criteria, adopted by the courts for the decision of the question, whether any particular cargo of provisions be con- fiscable . nment would not protect from confiscation such articles as ^ere deemed contraband by the << modem usage of nations. The gov- ernment, however, determined to receive a r inister from the French republic, though the treaty of am y made witb Louis XVI. led to embarrassments on this s iject, as well as the existence of a regency consisting of ce -ain members of the late royal family of France. But it may well be a question, how far it is incumbent upon nations to adhere to compacts entered into with a government that has been dis- possessed. Though nations should only be discharged in the last extremity from the obligations of treaties, they are required by public law to recognise new governments, as soon as it is evident, they are able to maintain their own in- ir:-:; * See Treaty — second chapter. t See title "Convention of 1800." TREATY OF '94 WITH ENGLAND. 187 dependence, and system of internal or municipal law. is done for the welfare and security of society.*^ This * We publish in this place the rules of neutrality, established by the government, and sent in instructions to its Custom House officers. " 1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, of- fensive or defensive, is deemed unlawful. ** 2. Equipments of merchant vessels by either of the belligerent par- ties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful. "3. Equipments in the ports of the United States of vessels of war, in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, AS being applicable either to commerce or war, are deemed lawful ; ex- cept those which shall have made prize of the subjects, people, or pro- perty of France coming with their prizes into the ports of the United States, pursuant to the 17th article of our treaty of amity and com- merce with France. " 4. Equipments in the ports of the United States, by any of the par- ties at war with France, of vessels fitted for merchandise and war, whether with or without commission, which are doubtful in their na- ture, as being applicable either to commerce or war, are deemed law- ful ; except those which shall have made prize, &c. "5. Equipments of any vessels of France, in the ports of the United States, which are doubtful in their nature as being applicable to com- merce or war, are deemed lawful. " 6. Equipments of every kind in the ports of the United States of privateers of the powers at war with France, are deemed unlawful. " 7. Equipments of vessels in the ports -of the United States, which are of a nature solely adapted to war, are deemed unlawful ; except those stranded or wrecked, as mentioned in the 18th article of our treaty with France, the 16th of our treaty with the United Netherlands, the 9th of our treaty with Prussia ; and except those mentioned in the 19th article of our treaty with France, the 17th of our treaty with the United Netherlands, the 18ih of our treaty with Prussia. "8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of tlie foregoing rules, may lawfully engage or enlist therein their own subjects or citizens, not being inhabitants of the Uni- ted States ; except privateers of the powers at war with France, and except those vessels which shall have made prize, &;c." k ^ 190 TREATY OF '94 WITH ENGLAND. The Executive was resolved, not only to maintain its neu- tral position, but the hope of concluding a commercial ar- rangement with one of the great belligerents was not entirely abandoned. The despatches and advices, received from England, indicated a wish, on the part of that government, not to drive this country into a war ; at any rate, it was de- sirable to ascertain, beyond a doubt, the dispositions of the British ministry, — and either to remove the causes of the quarrel then existing, or to obtain satisfactory evidence that Great Britain was indifferent to their existence. The Pre- sident, accordingly, on the 16th of April 1794, sent the following message to the Senate : ** The communicatioDS, which I have made to you during your present aession, from the despatches of our minister in London^ contain a serious aspect of our affairs with Great Britain. But, as peace ought to be pursued with unremitted zeal, before the last resource, which has so often been the scourge of nations, and can- not fail to check the iidvi»nced prosperity of the United States, 1 have thought proper to nominate, and do hereby nominate, John Jay, as envoy extraordinary of the United States, to his Britannic Majesty. " My confidence in our minister plenipotentiary in London con- tinues undiminished. But a mission liiie this, while it corresponds with the solemnity of the occasion, will announce to the world a solicitude for the friendly adjustment of our complaints, and a re- luctance to hostility. Going immediately from the United States, such an envoy will carry with him a full knowledge of the existing temper and sensibility of our country ; and will thus be taught to vindicate our rights with firmness, and to cultivate peace with sin- cerity." This has been considered one of the boldest and most de- cided resolutions, adopted by General Washington during his administration. It is one that at the moment, awakened most reproach and censure ; but we doubt exceedingly, whether any one measure, proposed by that illustrious indi- vidual, has been, in the end, accompanied with more good consequences to the nation. It confirmed at the time, the neutrality of the country ; and, consequently, extended to ^rade and commerce all the confidence and security the cer- TREATY OF '94 WITH ENGLAND. 189 tainty of that fact could bestow. No one feared that the United States would take part uith England. This was im- possible. Her neutrality could not be disturbed in that di- rection. And, when an envoy extraordinary was nominated to his Britannic Majesty, the nation became satisfied, that the executive, at least, was determined not to take part with France. This nomination settled the question of neutrality for many years. The oppressive acts of the belligerents were then in their infancy ; America had, comparatively, suffered little ; and though not a stipulation, in favour of neutral rights, was made in the treaty of 1794, Great Brit- ain appeared to rest, for a moment, from the unjust exercise of her vast power on the ocean. The U. States escaped a war at this time, an evil infinite in its consequences. The wasting, bloody conflicts of the French Revolution were just then beginning ; and if this country had, at that early period, with all the heat and excitement of the moment upon her, rushed into the fray, no one could have meted out the de- gree of honour or dishonour that would have attended her course, or have foretold the disasters, that would have overr taken her own matchless institutions. The progress of events, at last, drove her into a war with one of the great belligerents ; but this was toward the close of a scene, of which she had been for twenty years a spectator. The dis- tance of America from Europe, the youth and peculiarity of her government, at that time little understood, and certainly far from being confirmed, the narrowness of her resources, the entire absence of every species' of military armament, powerfully combined to point out the course she should adopt. In ordinary times, it would have required neither uncommon firmness nor dexterity to have conducted the af- fairs of the nation. But this was an extraordinary period — extraordinary, not only from the remarkable circumstance, that France had now become professedly herself a republic, and was threatened with annihilation by a European coali- tion, at the head of which was England, — but more extraor- dinary still, from the moral phenomenon, that the minds of men, in all civilized countries of the world, were infinitely 'I, 190 TREATY OF '94 WITH ENGLAND. excited by an universal and overwhelming political infatua* tion. The government of the United States, depending solely on opinion, had to contend with this spirit. And that opinion, to which it looked for support and defence, was, it- self, exceedingly infected and bewildered. Mr. Jay arrived in London in June ; he was deputed for an extraordinary purpose ; and there can be no question, but a war would have taken place, if he had not succeeded in making a treaty. We shall extract a part of his instructions, not so much on account of any importance that belongs to them, as from the circumstance, that this was undoubtedly the most important embassy that has been undertaken since the organization of the Federal government. The treaty, too, negotiated on this occasion, though, perhaps, justified by the alarming and perplexed state of public affairs at that pe- riod, can with difficulty be reconciled to the instructions, prepared by the Secretary of State. " The mission upon which you are about to enter, as Envojr Ex- traordinary to the Court of London, has been dictated by consider- ations of an interesting and pressing nature. " You will doubtless avail yourself of these to convince Mr. Pinck- pey, our Minister in ordinary there, of the necessity of this measure, and will thus prevent any wound to his sensibility. He may be as- sured that it is the impression which will naturally accompany this demonstration of the public sentiment, and not the smallest abate- ment of confidence in him, which has recommended a special ap- pointment. Nor will any of his usual functions be suspended, ex- cept 80 far as they may be embraced in the present commission. It would be unnecessary to add, but for the sake of manifesting this fact, and removing difficulties which may arise in your own breast, that you will communicate with him without reserve. ** A full persuasion is entertained that throughout the whole ne- gotiation you will make the following its general objects : to keep alive in the mind of the British Minister that opinion, which the solemnity of a special mission must naturally inspire, of the strong agitations excited in the people of the United States by the dis- turbed condition of things between them and Great Britain ; to re- pel war, for which we are not disposed, and into which the neces- TREATY OP '94 WITH Kl^OLAim. 191 sity of vindicating onr honour and our property may, but can alone drive us; to prevent the British ministry, should they be resolved on war, from carrying^ with them the British nation ; and, at the same time, to assert, with dignity and tirmness, our rights, and oar title to reparation for past injuries. "You will mention, with due stress, the general irritation of the United States at the vexations, spoliations, captures, &c. and, being on the field of negotiation, you will be more able to judge than can be prescribed now, how far you may state the difficulty, which may occur in restraining the violence of some of our exasperated citizens. " If the British ministry should hint at any supposed predilection in the United States for the French nation, as warranting the whole or any part of these instructions, you will stop the progress of this subject as being irrelative to the question in hand. It is a circumr stance which the British nation have no right to object to us ; be> cause we are free in our afTections, and independent in our govern- ment. But it may be safely answered, upon the authority of the correspondence between the Secretary of State and Mr. Hammond, that our neutrality has been scrupulously observed. ** In this negotiation as to the treaty of peace, we have been amused by transferring the discussions concerning its inexecution and infractions from one side of the Atlantic to the other. In the meantime, one of the consequences of holding the posts has been much bloodshed on our frontiers by the Indians, and much expense. The British Government having denied their abetting of the Indians, we must of course acquit them. But we have satisfactory proofs (some of which, however, cannot, as you will discover, be well used in public,) that British agents are guilty of stirring up, and assisting with arms, ammunition, and warlike implements, the dif- ferent tribes of Indians against us. It is incumbent upon that Government to restrain those agents ; or the forbearance to re- strain them cannot be interpreted otherwise than as a determina- tion to countenance them. It is a principle from which the United States will not easily depart, either in their conduct towards other nations, or what they expect from them, that the Indians dwelling within the territories of one, shall not be interfered with by the other. m vt.Jj- 192 TREATY OF '94 WITH ENGLAND. " It may be observed here, as comprehending both of the fore- going points, that the United States testify their sincere love of pence by being nearly in a state of war, and yet anxious to obviate absolute war by friendly advances ; and if the desire of Great Britain to be in harmony with the United States be equally sincere, she will readily discover what kind of sensations will at length brise, when their trade is plundered ; their resources wasted in an Indian war; many of their citizens exposed to the cruelties of the savages ; their rights by treaty denied ; and those of Great Britain enforced in our Courts. But you will consider the inexecution and infraction of the treaty as standing on distinct grounds from the vexations and spoliations; so that no adjustment of the former is to be influenced by the latter. " 3. It is referred to your discretion whether, in case the two preceding points should be so accommodated as to promise the con- tinuance of tranquillity between the United States and Great Britain, the subject of a commercial treaty may not be listened to by you, or even broken by the British ministry. If it should, let these be the general objects : '^ 1. Reciprocity in navigation, particularly to the West Indies, and even to the East Indies. '^ 2. The admission of wheat, fish, salt meat, and other great Staples, upon the same footing with the admission of the great British staples in our ports. ■ , . "3. Free ships to make free goods. ■ *' 4. Proper security for the safety of neutral commerce in other respects ; and particularly " By declaring provisions never to be contraband, except in the strongest possible case, as the blockade of a port, or, if attainable, by abolishing contraband altogether. " By defining a blockade, if contraband must continue in some degree, as it is defined in the armed neutrality. '^ By restricting the opportunities of vexation in visiting vessels: and " By bringing under stricter management privateers ; and expe- diting recoveries against them for misconduct. " 5. Exemption of emigrants, and particularly manufacturers, from restraint. " 6. Free exports of arms and military stores. li. :ii! , «■ ♦• TRBATY or '94 WITH SNOI.AIID. 193 >' 7. The exclusion of the terms ' the most favoured nation,' as being productive of embarriissmcnt. " 8. The convoy of merchant ships by the public ships of War, where it shall be necessary, and they be holding the same course^ " 94 It is anxiously to be desired, that the fishing grounds now engrossed by the British should be opened to the citizens of the United States. " 10. The intercourse with England makes it necessary that the disabilities, arising from alienage in cases of inheritance, should be put upon a liberal footing, or rather abolished. 'Ml. You may discuss the sale of prizes in our ports while we are neutral ; and this, perhaps, may be added to the considerations which we have to give, besides those of reciprocity. *' 12. Proper shelter, defence and succour against pifates, sfhlp* wreck, &c. " 13. Full security for the retiring of the citizens of the United States from the British dominions, in case a war should break out. " 14. No privateering commissions to be taken out by the sub- jects of the one, or citizens of the other party, against each other. ** 15. Consuls, &c. to be admitted in Europe, the West and East Indies. " 16. In case of an Indian war, none but the usual supplies in peace shall be furnished. '^ 17. In peace, no troops to be kept within a limited distance from the lakes. . • ., 1*^1. ^ " 1 8. No stipulation whatever is to interfere with our obliga- tions to France. ^, , ^ ... . ", 19. A treaty is not to continue beyond fifteen years. '^ 5. You will have no difficulty in gaining access to the ministers of Russia, Denmark and Sweden, at the Court of London. The principles of the armed neutrality would abundantly cover our neutral rights. If, therefore, the situation of things with respect to Great Britain, should dictate the necessity of taking the precau- tion of foreign cooperation upon this head ; if no prospect of ac- commodation should be thwarted by the danger of such a measure being known to the British Court; and if an entire view of all our political relations shall, in our judgment, permit the step ; you will sound those ministers upon the probability of an alliance with their nations to support those principles.'' VOL. I. 26 mm •~i^ ;:l •.sj?',,, 194 TBSATT OF '94 WITH ENGLAND. ''*' The discussions attending this treaty were principally ver- bal ; — the detail of the argument would amount to little else than a repetition of the course of reasoning or remarks, that have already been introduced, relative to the transactions with England. The negotiation was once broken off, and Mr. Jay wrote a private letter to the President, signifying to him, that he had abandoned all hopes of an arrangement. He, also, began the composition of a long memorial on the whole subject, which it was his intention to have transmit- ted to the British minister; but a favourable turn taking place in affairs, a treaty of amity, commerce and navigationv was finally signed on the 19 of November 1794 at London^ with William Wyndham Baron Grenville.* . -^ .^ * This is one of the longest treaties in the collection. * ' '* '•'"^*^" " Art. 3. His majesty will withdraw all his troops and garrisons from all posts and places within the boundary lines assigned by thv treaty of peace to the United States. This evacuation shall take place* en or before tlie first day of June, one thousand seven hundred and ninety-six, and all the proper measures shall in the interval be taken by concert between the government of the United States, and h»» majesty's governor general in America, fur setthng the previous ar- rangements which may be necessary respecting the delivery of the •aid posts : the United States in the mean time, at their discretion, ex- tending their settfements to any part within the said boundary line^ except within the precincts or jurisdiction of any of the said posts. Alt settlers and traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy, unmolested, all their property, of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their effects ; and it shall also be free to them to sell their lands, houses, or effects, or to letain the property thereof, at their discretion ; such of them as shaU continue to reside within the said boundary lines, shall not be com- pelled to become citizens of the United States, or to take any oath of allegiance to the government thereof; but they shall be at full liberty so to do if they think proper, and they shall make and declare their election within one year after the evacuation aforesaid. And all per- sons who shall continue there after the expiration of the said year, without having declared their intention of remaining subjects of bis Britannic majesty, shall bo considered as having elected to become citizens of the United States. ' 1 . -f''r ' >.:■•'- " Art. 3. It is agreed that it shall at ull times be free to his majesty's Hi; TREATY OF '94 WITH ENOLAMD. 195 • ■ It is well known that this treaty was eztremelj un- popular. Hllhiecta. nnd tn tlm pifivona nf tha fTnWml Stntna. nii<1 nian tn tliA f n. tditLUB dwelling on eitlior side of the sakl boundary line, freely to pass .and repass, by land, or inland navigation, into tbo respective territories and countries of the two parties, on the continent of America, (the x:ountry within the limits of the Hudson's bay company only excepted) And to navkgnte all the lakes, rivers and waters thereof, and freely to .carry on trade and commerce with eac n other. But it is understood, ihat this article does not extend to the admission of vessels of the United States into the seaports, harbours, bays, or creeks of hismajes- ;Cy's said territories ; nor into such parts of the rivers in his majesty's «aid territories as are between tlie mouth thereof and the highest |K>r.t x)f entry from tlie sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any frauds in this respect. Nor to the ad- /nission of British vessels from the sea into the rivers of the United States, beyond the highest ports of entry for foreign vessels from the «ea. The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties ; and it is further agreed, that all the ports and places on its eastern side, to whichsoever of the par- ties belonging, may freely be resorted to and used by both parties, in ;as ample a manner as any of the Atlantic ports or places of the United :States, or any of the ports or places of his majesty in Great Britain. *' All goods and merchandise whose importation into his majesty's rsaid territories in America, shall not be entirely prohibited, may free- liy, for the purposes of commerce, be carried into the same in the man- ner aforesaid, by the citizens of the United States, and such goods and merchandise shall be subject to no higher or other duties than would he payable by his majesty's subjects on the importation of the same from Europe into the said territories. And in like manner, all goods ^nd merchandise whose importation into the United States shall not f)e wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by his majesty's sub- jects, and such goods and merchandise shall be subject to no higher or other duties, than would be payable by the citizens of the United States on the importation of the same in American vessels into the Atlantic ports of the said states. And all goods not prohibited to be exported from the said territories respectively, may, in like manner, be carried out of the same by the two parties respectively, paying duty AS aforesaid. ''No duty of entry shall ever be levied by either party on peltries 1% om the United States, in their own vcuscls, not being above the bur- den of seventy tons, any goods or merchandises, being of the growth, manufacture, or produce of tito said states, which it is or naay he law- ful to carry to the said islands or ports, from the said states, iu British veeaels; and that the said American vessels shall he subject there to no other or higher tonnage duties or charges, tiian shall be payable by British vessels in the ports of the United States; and that the cargoes of the said American vessels shall bo subject there to no other or higher duties or charges, than shall bo payable on the lilie articles if imported there from the said states in IJritish vessels. "And his majesty also consents, that it shall be lawful fur the said American citizens to purchase, load, and carry away in their said ves- aels to the United States from the said islands and ports, all such arti- cles, being of the growth, manufacture, or produce of the said islands, ^8 may now bylaw be carried from thence to the said states in British vessels, and subject only to the same duties and charges on exporta- tion, to which British vessels and their cargoes are or shall be subject in similar circumstances. "Provided always, that the said American vessels do carry and land Iheir cargoes in the United States only, it being expressly agreed and declared, that during the continuance of this article, the United States ivill prohibit and restrain the carrying any molasses, sugar, coffee, co- coa, or cotton, in American vessels, either from his majesty's islands, or from the United States to any part of the world, except the United States, reasonable sea stores excepted. Provided also, that it shall and may be lawful, during the same period, for British vessels, to im- port from the said islands, into the United States, and to export from ^e United States, to the said islands, all articles whatever, being of the growth, produce, or manufacture of the said islands, or of the United States respectively, which now may, by the laws of the said states, be so imported and exported. And that the cargoes of the said British vessels shall be subject to no other or higherduties, or charges, than shall be payable on the same articles if so imported or exported in American vessels. TREATY or *0<1 WITH CMOLAND. loa ;onfi»cated duties of (he Ignited States. He is at present in Virginia, tnd will,- doubtless, very suun take liia conclusive step. If! were permitted to conjecture what tlmt '^ould be, 1 tliould suspect that at aojr rate "It ii agrt ''(1 that tliis Mrtirle mul every matter and thing therein contained, hIiuII < ontiiuie tu ho in force during the continuance of tbtf war in which hi» /^>njoHty is now eiigngod ; and also for two year* from and nAcr tlie day iif ilio iiignntiiro of (lift preliminary or other articles of pence, by which tiio Hnino may bo terminated. ** And it is further agreed, tliut at the cxpirr.tion of the said term, the two contracting particH will endeavour further to regulate their commerce in thiu respect, according to the situation in which his ma- jesty may then find himself with respect to the West Indies, and with h view to such arrangements as may best conduce to the mutual ad- vantage and extension of conmicrce. And the said parties will then also renew their didcusaiona, and endeavour to agree, whether in any and what cases neutral vessels shall protect enemy's property ; and ia what cases provisions and other articles, not generally contraband, may become such. But in the mean time, their conduct towards each other in these res(>cct8, shall be regulated by the articles hereinafter inserted on those subjects. " Art. 13. His majesty consents that tho vessels belonging to the citizens of the United States of America shnll be admitted and hospita- bly received in all the seaports and harbours of tlie British territories iu tho East Indies. And that the citizens of the said United States may freely carry on a trade between the said territories and the said United States, in all articles of which tho importation or exportation respectively, to or from the said territories, shall not be entirely pro- hibited. Provided only, that it shall not be lawful for them in any time of war between the British government and any other power or state whatever, to export from tho said territories, without the special permission of the British government there, any military stores, or na- val stores, or rice. The citizens of tho United States shall pay for their vessels when admitted into the said ports, no other or higher tonnage duty than shall be payable on British vessels when admitted into the ports of the United States. And they shall pay no other or higher duties or charges, on the importation or exportation of the cargoes of the said vessels, than shall be payable on the same articles when imported or exported in British vessels. But it is expressly agreed, that the vessels of the United States shall not carry any of the articles exported by them from the said British territories, to any port or place, except to some port or place in America, where the same shall be unladen, and such regulations shall be adopted by both par- *^Hu fiOO TREATY OF '94 WITH SNOLAND. he would not sign it, till it should return from England with the ad- dition of the suspending article, and probably not even then, if the late British order, for the capture of provisions going to France, should have been issued, as we suppose. v ties, as shall, from time to time, be found necessary to enforce the due and faithful observance of this stipulation. It is also understood that the permission granted by this article, is not to extend to allow the vessels of the United States to carry on any part of the coasting trade of the said British territories ; but vessels going with their original cargoes, or part thereof, from one port of dis(;harge to another, are not to be considered as carrying on the coasting trade. Neither is this article to be construed to allow the citizens of the said states to settle or reside within the said territories, or to go into the interior parts thereof, without the permission of the British government es- tablished there ; and if any transgression should be attempted against the regulations of the British government in this respect, the observ- ance of the same shall and may be enforced against the citizens of America in the same manner as against British subjects or others transgressing the same rule. And the citizens of the United States, whenever they arrive in any port or harbour in the said territories, or if they should be permitted in manner aforesaid, to go to any other place therein, shall always be subject to the Kws, government and jurisdiction of what nature established in such harbour, port, or place, according as the same may be. The citizens of the United States may also touch for refreshment at the island of St. Helena, but subject in all respects to such regulations as the British government may from time to time ostablish there. "Art. 14. There shall be between all the dominions of his maje.sty in Europe and the territories of the United States, a reciprocal and perfect liberty of commerce and navigation. The people and inhabi- tants of the two countries respectively, shall have liberty freely and securely, and without hindrance and molestation, to come with their ships and cargoes to the lands, countries, cities, ports, places and rivers, within the dominions and territories aforesaid, to enter into the same, to resort there, and to remain and reside there, without any limitation of time. Also to hire and possess houses and warehouses for the purposes of their commerce, and generally, the merchants and traders on each side, shall enjoy the most complete protection and se- curity for their commerce ; but subject always, as to what respects this article, to the laws and statutes of the two countries respectively. "Art. 15. It is agreed that no other or higher duties shall be paid by the ships or merchandise of the one party, in the ports of the other, A*' TREATY OF '94 WITH ENGLAND.' 201 'i ** The present may well be considered as a crisis, from the sop- posilion of a rejection or a ratification. In the former case, the result with Great Britain is not so easily foreseen. In the latter, than such as are paid by the like vessels or merchandise of all other nations. Nor shall any other or higher duty be imposed in one coun- try on the importation of any articles, the growth, produce, or manu- facture of the other, than are or shall be payable on the importation of the like articles, being of the growth, produce, or manufacture of any other foreign country. Nor shall any prohibition be imposed on the exportation or importation of any articles, to or from the territories of the two parties respectively, which shall not equally extend to all other nations. " But the British government reserves to itself the right of imposing on American vessels entering into the British ports in Europe, a ton- nage duty equal to that which shall be payable by British vessels in the ports of America: and also such duty as maybe adequate to counter- vail the difference of duty now payable on the importation of European and Asiatic goods, when imported into the United States in British or in American vessels. " The two parties agree to treat for the more exact equalization of the duties on the respective navigation of their subjects and people, in such manner as may be most beneficial to the two countries. The arrange- ments for this purpose shall be made at the same time, with those mentioned at the conclusion of the twelfth article of this treaty, and are to be considered as a part thereof. In the interval, it is agreed that the United States will not impose any new or additional tonnage duties on British vessels, nor increase the now subsisting difference between the duties payable on the importation of any articles in British or in American vessels. ' - " Art. 17. Vessels captured on suspicion of having contraband, or enetny^s property, to be sent into the nearest port ; the contraband, &c. to be taken out, and the vessel and remainder of the cargo to be al- lowed to proceed. " Art. 18. Vessels of either party, not to be detained, on attempt- ing to enter a blockaded place, unless previously warned off. "Art. 21. A third (enemy) power, not allowed to enlist citizens or subjects of either party. Persons taken offending against the provi- sions of this article may be treated as pirates. " Art. 24. It shall not be lawful for any foreign privateers (not being subjects or citizens of either of the suid parties) who huvo commis- sions from any other prince or state in enmity with either nation, to VOL. I. 2Q ^Sk 2Q2 TREATY OF '94 WITH ENGLAND. the result in our own country is involved with many delicate and hazardous topics. It is my consolation, however, that he who guides the helm, will, by his tvisdom and fortitude, steer us into safe port." ■*" arm their ships in the ports of cither of the said parties, nor to sell what they have taken, nor in any other manner to exchange the same ; nor shall they be allowed to purcliuso more provisions than shall be necessary for their going to the nearest port of that prince or state from whom they obtained their commissions. " Art. 25. It shall be lawful for the ships of war and privateers lielonging to the said parties respectively, to carry whithersoever they please, the ships and goods taken from their enemies, without being obliged to pay any fee to the officers of the admiralty, or to any judges whatever ; nor shall the said prizes when they arrive at, and enter the ports of the said parties, be detained or seized, neither shall the search- ers or other officers of those places visit such prizes, (except for the purpose of preventing the carrying of any part of the cargo thereof on shore in any manner contrary to the established laws of revenue^ navigation, or commerce,) nor shall such officers take cognizance of the validity of such prizes; but they shall be at liberty to hoist sail and depart as speedily as may be, and carry their said prizes to the place mentioned in their commissions or patents, which the command- ers of the said ships of war or privateers shall be obliged to show. — No shelter or refuge shall be given in their ports to such as have made a prize upon the subjects or citizens of cither of the said parties; but if forced by stress of weather, or the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as ])ossiI)le. Nothing in this treoty contained shall, however, be construed or operate contrary to former and existing public treaties with otiier sovereigns or states. But the two parties agree, that while they continue in amity, neither of them will in future make any treaty that shall be inconsistent with this or the preceding article. ; •■ " Neither of the said parties shall permit the ships or goods belonging to the subjects or citizens of the other, to be taken within cannon slwt of the coast, nor in any of the bays, ports, or rivers of their ter- ritories, by ships of war, orotliors having commission from any prince, republic, or state whatever. But in case it should so happen, the party whose territorial rights shall thus have been violated, shall use his utmost endeavours to obtain from the offending party, full and ample satisfaction for the vessel or vessels so taken, whether the same bo vessels of war or merchant vessels. .^;c, TREATY OF '94 WITH ENGLAND. 203 The President had early determined to ratify the treaty f and, after a long and careful examination, it was finally rati- fied by the Senate, a precise constitutional number voting for it. A reservation was, however, made, in relation to the twelfth article. That article regulated the trade between " Art. 20. In case of a rupture, tlio merchants and others of tho two nations, during good behaviour, allowed to continue their trade. "Art. 27. It is further agreed, thxit his majesty and the United States, on mutual requisitions, by them respectively, or by their re- spective ministers, or officers, authorized to make the same, will deliv- er up to justice, all persons who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other: provided, that this shall only be done on such evidence of criminality, as, according to tho laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the offence had there been committed. The expense of such apprehension and de- livery shall be borne and defrayed by those who make the requisition and receive the fugitive. " Art. 28. It is agreed, that the first ten articles of this treaty shall be permanent, and that the subsequent articles, except the twelAh,8hall be limited in their duration to twelve years, to be computed from the day on which the ratifications of this treaty shall be exchanged, but subject to this condition, that whereas the said twelfth article will ex- pire by the limitation therein contained, at the end of two years from the signing of the preliminary or other articles of peace, which shall terminate the present war in which is majesty is engaged, it is agreed, that proper measures shall, by concert, be taken, for bringing the sub- ject of that article into amicable treaty and discussion, so early before the expiration of the said term, as that new arrangements on that head may, by that time, be perfected, and ready to take place. But if it should unfortunately happen, that his majesty and the United States should not be able to agree on such new arrangements, in that case, all the articles of this treaty, except the first ten, shall then cease and expire together." ^v^. In 1796, an explanatory article, respecting the third article, (con- cerning the Indians) was agreed on ; and in '98, another article, re- lating to th i source of the St. Croix, was made— the first in Philadel- phia, between Mr. Pickering, the Secretary of State, and Mr. Bond, the English Consul General, — and the other at London, between the American Minister, "Mr. King, and Lord Grcnvillc. 204 TREATY OF '94 WITH ENGLAND. the United States i>nd the West Indies. The Senate agreed to the ratification, on condition an article was added, suspend- ing the operation of the 12th. This presented a new and great difficulty. The Senate advised to the ratification of an article that had not heen laid before them ; and the President was called upon, under that advice, to ratify a treaty, into which the article, that was made the condition of the ratifica- tion, had not been introduced. But in the mean time, the English revived their provision order. This circumstance led to considerable delay, on the part of the American govern- ment. However, in the month of August, the President, be-r jng satisfied that the proceedings of the Senate fell clearly within the meaning of the constitution,^ resolved to ratify the treaty, and to accompany that act by a strong memorial, di- rected against the provision order ; a step attended with hap- py consequences ; — the order being revoked, and the treaty at last ratified in the usual form, the 28th of October 1796, together with an additional article, suspending the operation pf the twelfth. This act was performed by Mr. J. Q. Adams, Minister Resident at the Hague, despatched for that purpose to London, Mr. Pinckney being then at Madrid. f ^^i = i:i The objection of the Senate to a part of the twelfth arti- cle was perfectly just. It allowed a direct trade between the United States and the British colonies in the West In- dies, in vessels not exceeding seventy tons in burthen, but the United States were under an obligation to restrain their vessels from car!\, ing certain articles, the produce of those islands, to any other place than the United States. One of these articles was cotton. It is now generally known, that the American minister, who negotiated the treaty, was not aware that cotton was already introduced into the United States, and had become an article of export ; — a fact of which he could well be ignorant, for we find it stated in the debates of Congress, that a member from South Ci^rolina obr * Art. 2. sec. 2. par. 2. f Tlie appropviatious for this treulj- were jiasscd by n vote in tljc House of 51 to 48 ; — a small majority. TREATY OF '94 WITH ENGLAND. 205 served, in the House of Representatives in 1789, that the people of the southern states intended to cultivate cotton, and " if good seed could be procured, he believed they might succeed." When the treaty was made, the amount of the export could not be ascertained ; for, till 1802, no discrimination was made between cotton wool of domestic and of foreign growth. The twelfth article, would, there- fore, have certainly stopped the export of that commodity, which amounted, at the time this article would have expired by its own limitation, to about 45,000,000 lbs. annually. It is also quite clear, that this article would have broken up the greater part of the American carrying trade. During the continuance of it, the Americans were forbid from car- rying " any molasscsy sugar, coffee, cocoa, or cotton, in American vessels, either from his Majesty^ s islands, or from the United States, to any part of the ivorld, except the Uni' ted States.^^ This provision would have, in effect, deprived America of a great part of the benefits she derived from a state of neutrality, during the wars in Europe. Access to the West India islands, under the protection of treaty, was abandoned by cancelling this article ; though the arranger nient, as to the burthen of the vessel, may be considered a judicious one. Small vessels, with high waists, both on ac- count of the outward cargo and the climate of the islands (not being compelled to remain long to dispose of their stock, by which the crew are saved from great exposure) r e pror bably the best for this navigation. A merchant s J, that with the 70 ton vessels, allowed in the treaty, he would have brought every hogshead of sugar from the West India islands. As respected that trade, it was the best article in the treaty and, thus far, the only formal arrangement we have succeeded in making. On another occasion, an inter- course was permitted, by the French government, with their islands, in vessels not exceeding sixty tons in burthen. The treaty restored the posts on the western frontier to the Americans, without an indemnity for their long detention, or for the slaves carried off by Sir Guy Carleton. The English had held these posts twelve years, in violation of the treaty. HiiV 206 TREATY OF *0'4 WITH ENOLANP. iihS!' The provision can only bo considered as an acknowledg- ment, on the part of the Americans, of having violated the same treaty, to the extent declared by the English, — and it was an absolute surrender of the property removed in '83 from New- York. Ship timber, tar, hemp, sails and copper were declared contraband, though free in all other treaties made by the United States. The laws of nations do not specifically enu- merate them as subject to confiscation. Provisions also, were declared contraband, according to modern usages ;* obviously, an arbitrary distinction, and in most respects un- meaning, — because the question, in the correspondence be- tween the two governments, had turned upon the point, whether public law rendered them contraband or not. Re- ferring the principle to this standard was, in other words, acknowledging the pretensions of England, for wherever she had the power to enforce her orders, she had made provisions subject to the usual penalties of war. There was, also, an express declaration, that the flag did not cover the merchandise. This is the only treaty, signed by Amer- ica, in which this acknowledgment can be found. We have never been able to obtain from England a denial of this right of the belligerent, but silence wears a different aspect from a direct confirmation of the legality of the practice. The American government had, however, before acknow- ledged this principle, in its official correspondence. We re- fer to a passage in Mr. Jefferson's letter of July '93.f The I. '. * The article, however, entitled them to the riglit of preemption; though this provision does not, in reality, alter the principle of the sti- pulation. t "Lcs mnrchandizes neutres chargees par I'encmie sont libres mais le pavilion neutrc ne neutralize pas la marchandize ennemic." (Schoell, vol. iv. p. 15.) This is the leading doctrine in the oldest work extant on maritime law. It was received at a time when it was easy to ascertain the ownership of goods or cargo — when the owner embarked with and accompanied his goods to a market. The appli- cation is more difHcult in modern days. Busin'^^- i:- now done by commission, and the transfers of trade arc constairi, and exceedingly TREATY OF '94 WITH ENGLAND. 207 treaty did not define the right of search or blockade, but ac- knowledged both in general terms. These were the points that related to the laws of nations; they certainly could not be considered as favourable to the United States ; but these were doctrines lingland would not relinquish, as this government has had abundant experience. She would not yield them to the armed neutrality of '80, nor has any one state, or coalition of states, yet succeeded in compelling her to abate a tittle from a rigorous enforce- ment of them. Mr. Jay's treaty has been called an instru- ment that settled nothing. There is some ground for the description. The position and boundaries of the Mississippi and the St. Croix, the debts, and the spoliations, were re- ferred to commissioners ; the West India trade, reciprocal duties, contrabands, the neutral flag, and provisions, to future negotiations. These were really the principal provisions of the treaty, and it is worth while to trace, for a moment, their history. The north-western and north-eastern ]i)oun- daries, though in progress, have not been settled to this day ; the commission on the debts was suspended, — and the American government agreed to pay, under the convention with Mr. King, in 1802, a sum of £600,000, as a release from the obligations of the sixth article of Mr. Jay's treaty ; the West India trade has not yet been secured ; and Ihe great questions of neutral flag, contrabands, and provisions, rest in the same profound uncertainty that they did in 1794. But the treaty was not without some advantages to the Uni- ted States, though its principal advantage consisted in its having decided the question of neutrality ; — if it settled none of the leading questions of neutral rights, it at least pre- vented a war, at a moment when the government and nation were in every respect unprepared, — in itself an infinite benefit. It opened all the ports of Great Britain in Europe, on equal terms ; all her ports in the East Indies, — but it involved. England, ut the peace of Utrecht, acknowledged that the flag covered the uicrchandisc. The basis of tlie armed neutrality of 1780 and 1800, was this principle, — but they clFected nothing for neu- tral commerce. 208 TREATY OF '94 WITH ENGLAND. made the trade round the Cape of Good Hope direct, and forbid the coasting trade. Before the treaty, the Ameri- cans had both an indirect and a coastwise trade in India. They carried cottons, for example, from the British settle- ments in the East Indies, to Canton. But the trade to In- dia and Europe depended, before 1794, on the pleasure of the British government ; it was now secured by treaty. The ratification of this instrument may be considered the proper solid foundation of the commercial prosperity of the United States. The first act of the government that proved the stability of the federal constitution ; it was a severe trial ; and the steadiness, with which the shock was borne, may be attributed, in some degree, to the personal character of the President.* », ,>■'.'. '•^M'-, S' i> * In 1791, tho lords of the committee of Privy Council made a mi- nute report on the trade of England with America. This report was intended to show on what terms it would he favourahle for Great Britain to conclude a treaty with the United States. The West India planters were desirous of having an intercourse opened with America, immediately after the peace of '83. — (Collection, &c. of reports on trade and navigation, &c. London, 1807, pubhshed by order of the society of ship owners, &c.) >:ji fit L'-f.r-'- :', ■ J^S.l;:': '!,■■ :..■■'.".■■' -■'< , ; ; . , ' f. Irt^fii'yv :}.j. ti.r't •>' ■ ,-■' U''- iV »-' ■!/,rt !••! J . .):'.. 'l'.^ I "'.ii\ ' '■■'S ( 209 ) CHAPTEH VII. TKEATY OF 1795 WITH SPAIN. Spain powerful at time of Revolution — Family Compact — Great American possessions — Franklin appointed minister in '77 to Madrid — Important letter — A. Lee goes to Dilboa — Letter of Grimaldi — Kurope secretly hostile to England — Spain avoids the coalition-— . Strives to reconcile France and England — Fails — Declares war against England in '79 — Jay sent to Spain — Received— Details of his proceedings — Makes no treaty^— English governrtent sent Cum- berland to Madrid — Fails — Important instructions — De Florida Blanco's mistake respecting invitation to Jay — Carmichael^Chargi— Presented at Court — Letter concerning la Fayette — Gardoquij Spanish Chargi — Treats respecting boundaries — JVothing done — South and JVorth divide on the navigation of the Mississippi — South in minority — Short and Carmichael,, commissioners to Spain — Re- marks on Mississippi — Important instructions — Spain, having enter- ed the coalition of '93, unwilling to treat — Indians — Acts of hostili- ty in Kentucky — Short — J^iar — Jaudcncs — Peace of Basle — Godoy — Pinckney sent to Madrid — Treaty of San Lorenzo el Real with Prince of Peace — Right of deposite at AVw Orleans suspended — Eastern and Western boundaries of Louisiana — France opposes claims of United States — Government take possession of W. Florida — Folch — Kemper — Spoliations — Settled by transfer of E. Florida — Humphreys — Yrujo — Bowdoin — Intercourse renewed in 1814^ Erving. m ^x the time of the declaration of independence^ Spain was mistress of half the continent of South America. She was one of the most powerful nations of Europe, not only from her own wealth, valuable colonies, and numerous and well appointed army and navy, but in consequence of an intimate connexion with France. The " family compact," adopted by the treaty of Paris of 1761, an alliance between VOL. I. 27 210 TREATY OF '95 WITH SPAIN. all the princes of tlio house of Bourbon, more especially the crowns of France and Spain, still existed. By that instru- ment, those two powers mutually guarantied their states and possessions, and assumed, as the basis of their alliance, the diplomatic maxim, " Qui attaque une couronnc, attaque Tau- tre." All the American possessions of Spain were then entire ; she enjoyed an active, extensive and lucrative com- merce ; and was as determined an enemy of England as France herself. After arrangements had been made by the Congress of the confederation to obtain the assistance of France, one of the next subjects of attention was Spain. As early as De- cember 1776, it was resolved to send commissioners to that country, and, in the beginning of the next year, Dr. Franklin was appointed the first envoy to Madrid, though he never went to that court.;'"' but while in Franc •, he addressed a letter to the Count d'Aranda, at that time tie Spanish minis- ter at Versailles. This letter will be found in the memoirs of Dr. Franklin, and as it explains in a few words the situa- tion of the two countries, we shall extract a portion of it: "Passy, April 7, 1777. Sir, — I left in your excellency's hands to be communicated, If you plcnse, to your court, a duplicate of iJie commission from the Conq;rcss, :n)pointing me to go to Spain as their minister plenipototjtiary. Hut 1 understand the receiving such u minister is not at present thought convenient, and I am sure, the Congress would have done nothing that might incommode, in the least, a court they so much respect. I shall, therefore, post- pone that journey till ci;'cumstanccs may make it more suitable. In the mean time, 1 beg leave to lay before his catholic majesty, through the hands of your excellency, the propositions contained in a resolution of Congress dated December 30, 177G, viz., "That if his catholic majesty will join with the United States in a war against Oreat Britain, they will assist in reducing to the possession of Spain toe town and harbour of Ponsiicohi, provided the inhabi- tants of the United States shall have the free navigation of the Mississippi, and the use of the harbour of Pensacola, and will (pro- * For commission, see Secret Journals, vol. li. Jan. 1, 77. TREATY OF '95 WITH SPAIN. 211 vided it shall bo true Ihnt his Portuguese mnjesty* bns insuUiDgly expelled the vessels uf these Slates from his ports, or has confiscat- ed any such ve!:>scli<) declare war against the said king, if that measure shall be agreeable to, and supported by, the courts of France and Spain/' It is understood that the strictest union sub- sists between these two courts, and, in case Spain and France should think fit to attempt the conquest of the English sugar isl- ands, the Congress have further proposed to furnish provisions to the amount of two milliuns of dollars, and to join the fleet employ- ed on the occasion with six frigates, of not less than 24 guns each, manned and fitted for service, and to render any other assistance, which may be in tlioir power, as becomes good allies, without desiring for themselves the possession of any of the said islands." A few months before the date of this letter Arthur Lee, at the request of Messrs. Franklin and Dcanc, undertook a journey to Spain, lie arrived at Bilboa in March, though he was not provided with a special appointment, and appears to have had no other object than to obtain money and sup- plies, lie was furnished with a letter and passports from the Spanish Minister at Paris, but the king would not allow him to proceed to Madrid from the extreme difficulty of maintaining his incognito. Don Diego Gardoqui was, how- * In consoqjioncc of tlic celebrated Metliucn treaty, the greater part of the Portuguese coniniorcc had fallen into the hands of the English, and those two countries were in a strict alliance and friendship. In the letter of B. Franklin quoted in the text, the reader will probably bo struck W'tli the uncoiiunon willingness of the Congress to engage in foreign connexions, though the motives and reasons uf such mea- sures are abundantfy apparent and satisfactory. Still it is remarkable, how few they formed ; how entirely they escaped from every sort of entangling league and association, with the single exception of the provision respecting the guaranty in the treaty of '78 with France. This circumstance is the more extraordinary, because England was at that time the common enemy of Europe, and an almost general armed confederation liad been entered into against her. America is indebted for this good forlunc, not only to the skill and discretion of her rulers, but to her " distant and detached situation," ond to a very common impression in Europe of her weakness and inabihty to ren- der valuable assistance to any cause. Wm> 212 TREATY or '96 WITH SPAIN. m, ever, sent from the capital to meet Lee, and a correspond dence, somewhat protracted, took place between them on the subject of contracts for supplies and shipments, made on American account at Biiboa. The same general dilficulty, that prevented other powers in Europe from joining the colo- nies, threw Spain, also, into a state of very equivocal neu- trality, though at this early period, enough had been done to manifest her favourable disposition. An otiicial, though secret, intercourse with the government was allowed Mr. Lee, and in the month of April 1777 the Duke Grimaldi, himself, delivered into the hands of the American agent at Vittoria the following paper — " You have considered your own situation and not ours. The moment has not come for us. The war with Portugal, BVance unprepared, our trea- sure from America not arrived, make it improper for us to declare immediately. These reasons will probably cease within a year, and then will be the moment." A single observation is suggested by the secret visits of the American agents in the beginning of the Revolution to the different courts of the European continent. The peace, maintained by the greater part of these States with England, was exceedingly hollow, and if one might judge of what was about to overtake that nation from the political symp- toms, privately disclosed, it was obvious her downfall was near at hand. The truth is, several of those governments still felt the ancient grudges of the two last wars, rankling in their cabinets, and all were alarmed at the sudden deve- lopment of English resources and prosperity, and the great accession of power and territory, that followed the treaty of 1763. But the corruption, the canker, the decay preying upon and wasting France, itself, saved England from that terrible day. At the same time, Spain showed a great disinclination to take an open part in the war declared in 1778 ; and the measures, adopted by France to induce her to this step, were at first received with uncommon coolness. B\'jtigued by her former contests, though of a recent date, and holding, herself, extensive and valuable foreign possessions, Spain did not TREATY OF '95 WITH SPAIN. 313 view the struggles of the Amcricnns with entire complacen- cy. A writer of the day hu8 prophecicJ, with remarkable exactness, the time and manner of the emancipation of Spanish America;* and though the Spanish government might have had little faith in such predictions, it could not have been ignorant that the example of the North American colonies would have been attended with pernicious conse- quences to the metropoles of the old world. France ex- ceedingly desired the assistance of Spain in this business, particularly as the navies of the two countries were, united, greatly superior to that of England. f The FreT,iigustine. And in a report, made by a com- mittee of Congress om this application, it was recommended that the United States should employ a considerable number of troops for that purpose. The failure in October of the attack on Charleston, and the Htate of things in the whole southern department, probably, defeated the project. 216 TREATY OF '95 WITH SPAIN. the horrors of Indian warfare. Let it appear also, from your representations, that ages will be necessary to settle those extensive regions.^^ The Spanish court granted leave to Mr. Jay to come to Madrid, but not in a formal manner, which could not be allowed, till a public acknowledgment of the independence wns accomplished. Spain, being then em- barked in the common war with England and the ally of France, also the ally of the United States, this course is somewhat difficult to explain. " His majesty" continues the Count Florida Blanca in his letter of February 24,1 780, writ- ten to Mr. Jay on this occasion, " thinks it necessary, in the first place, that the manner, form, and the mutual corres- pondence should be settled, upon which that union must be founded, the United States desires to establish with this country." In a long letter, composed with care and ability, Mr. Jay presented a full and just view of the situation of the United States. The document was communicated in April to the Spanish government ; and even thus early after his arrival at Madrid, the Count Florida Blanca informed the American envoy, that the only obstacle to a successful negotiation was the recognition of the Mississippi. Spain, at that period, seems to have formed a plan for getting entire possession of the shores of the Gulf of Mexico, and of excluding all na- tions from its waters, a project by no means difficult of exe- cution, considering the extent of her dominion in that quar- ter. — Mr. Jay had been received by the foreign ministers at Madrid with uncommon coldness ; — in other respects he was well satisfied, during the first few months, with his situation. His correspondence with the minister was principally con- fined to the drawing of bills to pay for the cloths bought by Arthur Lee. And at one time the king offered the envoy his personal responsibility to enable him to negotiate a loan for 1 50,000 dollars. " Thus things" remarks Mr. Jay in a letter of July 5, 1780, " were apparently in a good train, when the news of the loss of Charleston became credible. The eflfect of it was as visible the next day as that of a hard night's frost on young leaves." From this moment the minister TREATY OF '95 WITH SPAIN. 217 met with delay and cold loolc^^ on every hand, and de Flo- rida Blanca declared nothing could bo done, till the arrival of a person at Madrid, who was to succeed M. Mirailles at Philadelphia, an individual employed by Spain to give them information, and who, it appears, had died that spring in the United States. In the mean time, Mr. Jay was extremely embarrassed by the bills drawn on him by Congress ; — for many days he was threatened with protests, — the credit of the country being at the lowest possible ebb. Towards the end of the summer, the king again offered his name for ^ 150,000, but no cash could be obtained or. the credit of it, either in France or England ; and in September 1780, we find that ^ 50,000 of bills still remained without acceptance. Some intimations were, indeed, given that money would be furnished, if the United States would re- linquish their claim to the Mississippi. *■<■ The Count said this morning (September 23, '80) with warmth, that unless Spain could exclude all nations from the Gulf of Mexico, they might as well admit all. That the king would never relinquish that object, that the ministry regarded it as the principal thing to be obtairied by the war, and that obtained he should be easy, whether Spain obtained other cessions or not. The acquisition was much more important than that of Gibraltar " This expression fully explains the hesitation manifested by the Court of the Escurial, to engaging in an alliance with the United States. . The English government made an attempt this summer to detach Spain from the alliance with France. Mr. Richard Cumberland, well known as the author of various produc- tions, principally of a literary description, was employed in a secret mission to Madrid. In the entertaining Memoirs, written of himself, he has given an account of this business, though we have no means of ascertaining the precise propo- sals he was authorized to offer. " My destination was to repair to the neutral port of Lisbon, there to abide whilst the Abbe Ilussey, chaplain to his Catholic Majesty, proceeded to Aranjuez, and by the advice which he should send me, I was to be governed in the alternative of either going VOL. I. 28 218 TREATY OF '95 WITH SPAIN. to Spain, for the purpose of carrying my instructions into execu* lion, or of returning home by the same ship that conveyed me thither, which was ordered to wait my determination for the space of three weeks, unless dismissed or employed by me within that period. I was to take my wife and two daughters, Elizabeth and Sophia with me, on the pretence of travelling into Italy upon a passport through the Spanish dominions." , - jf By a letter to the Secretary of State, dated Lisbon, June 7, 1780, Mr. Cumberland appears to have departed some- what from his instructions by going into Spain. Be that as it may, he arrived the 1 8th of the same month at Aranjuez, and the next day was not only visited by the principal per- sons of the government, but the same evening had an inter- view with the first minister of state. We mention these circumstances, in themselves insignificant, to show that his visit was neither unexpected nor disagreeable to the Spanish court. " I will only say, that my treaty was in shape, and such as my instructions would have warranted me to transmit and recommend. Spain had received a recent check from Admiral Rodney, Gibraltar had been relieved with a high hand ; she was also upon very delicate and dubious terms with France. The crisis was decidedly in my favour, my reception flattering in the extreme, the Spanish nation was anxious for peace, and both court, ecclesiastics and military anti-gallican. The minister did not lose an hour after my arrival, but with much apparent alacrity in the cause immediately pro- ceeded to business. I never had any reason upon reflection to doubt the sincerity of Count Florida Blanca at this moment, and verily believe we should have advanced the business of the pre- liminaries, if the fatal news of the riots.* had not most critically come to hand that very day, on which by the minister's own ap- pointment we were to meet for fair discussion of the terms, while nothing seemed to threaten serious difficulty or disagreement be- tween us." Mr. Cumberland remained till November 1781, neither accomplishing the object of his mission, nor, as appears from * Lord George Gordon's No popery mobs are probably meant. TREATY OF '95 WITH SPAIN. 219 his memoirs, giving satisfaction to his own government. He does not allude upon any occasion to Mr. Jay or the Ameri* can subject ; but from an expression in a letter to the earl of Hillsborough of December 9, 1780, it seems he was di- rected not to make the " Rebellion" of the colonies matter of negotiation. It is well known England took the same ground with France. Mr. Cumberland's negotiation appears to have failed on account of some difficulty respecting Gib- raltar. But that Spain was in the secret of his mission is evident from the circumstance, that Count Florida Blanca informed Mr. Jay, he had come to Madrid on account of the health of his daughter, a pretence he had adopted by direc- tion of his own government. Notwithstanding Mr. Cumberland failed, Mr. Jay was not accredited ; and it was not till he had been ten months at Madrid, that he obtained a formal, serious conference on the subject of a treaty, a very remarkable circumstance, as Spain had now been engaged in the war more than two years. The invariable excuse offered for this delay was the too pressing affairs, the vexatious engagements of the minister. (Ses affaires toujours pressantes, ses incommodites habituel- les.) But no propositions were even then made by the Spanish government. In September 1781, Mr. Jay submit- ted the following, among many other stipulations, for a treaty, which we notice only on account of the extremely valuable privilege and right it was proposed to abandon. This was done by order of Congress, perhaps, as events have shown, the most disastrous, fatal proposition ever made by this country. " The United States shall relinquish to His Ca- tholic Majesty, and in future forbear to use, or attempt to use, the navigation of the Mississippi from the 31st degree of north latitude, that is, from the point where it leaves the Unitod States, down to the ocean." ^ -^ The treatment of the American envoy at Madrid was sen- sibly felt by this country. One of the commissioners at that time in Europe, observes, " the slight Spain has put upon our proffered friendship is very disreputable to us, and of course hurtful to our affairs elsewhere." And in February y mm) / 220 TREATY OF '95 WITH SPAIN. 1782 Mr. Jay himself remarked: "The conduct of this Court bears few marks of wisdom. The fact is, they have little money, less credit, and very moderate talents." The difficulty of procuring money for the bills, drawn by Con- gress, was the greatest and most constant vexation to which our ministers in Europe were exposed. No one suffered more in this way than Mr. Jay. And at last being totally unable to procure the necessary funds, he was subject to the humiliating measure of recording a protest on a considerable amount of the draughts. " Mr. Jay declares, that when he accepted the bills hereunto annexed, he had good reasons to expect to be supplied with the funds necessary to pay tlicm. That he has been disappointed in the expectations he had been encouraged to entertain on this sub- ject, and that his endeavours to obtain money, both here and else- where, have been unsuccessful, though the bills remaining to be paid, together with all other engagements, do not exceed £25,000. That these disappointments being unexpected, he cannot for want of time have recourse to Congress, and therefore finds himself re- duced to the mortifying necessity of permitting the bills to be pro- tested." " The national pride of the French minister," observes Mr. Jay, *' was hurt by this event (protest). I am sure he regret- ted it ns disreputable and impolitic. He told me this winter, he believed Spain wished to modify our independence, and to keep herself in a situation to mediate between us and England at a gep- eral peace." , . The money for these bills was at last procured from Franee ; after all, the only power in Europe that rendered us any solid, seasonable assistance. • v- '""' Mr. Jay remained in Madrid till May '82, but he was never accredited, nor admitted to any continued discussions on the subject of a treaty. His intercourse with the Spanish government was restricted to an irritating negotiation, re- specting a small loan of money and the redemption of the Congress bills. He appears all along to have considered it doubtful, whether the United States would not be compelled to abandon the Mississippi for an acknowledgment of inde- pendence by Spain ; he thought, also, that Spain, notwith- TREATY OF '95 WITH SPAIN. 221 standing the wishes of France, was by no means ready for a peace, having her eye fixed upon Gibraltar in Europe, as on the Gulf of Mexico in America. Early in the spring the news from England proved favourable to the Americans ; and it being known at Madrid, that the minister at Paris had obtained from France a loan of 6,000,000 of livres, Mr. Jay had the agreeable surprise of receiving one morning 9 note from the Count Florida Blanca, in these words : " The Count de Florida Blanca has been to take the orders of your Excellency for Aranjuez, ivhere he hopes to have the honour of the company of your Excellency at his table every Satur^ day after the ilth of May ensuing ;^^ the first note of the sort the American minister had received, and, according to the customs of the Spanish court, a place at the Count's public table at Aranjuez was considered equivalent to a recognition — an official proceeding. But the Spanish Secretary of State soon repented of this indiscretion, and, as had happened to Dr. Franklin at Paris in a somewhat similar accident, the mistake was immediately attributed to the fault of the Count's messenger. No one else, indeed, could be blamed. The invitation was in the hand writing of de Florida Blanca's private secretary, and was delivered by a bearer who had never made a mistake of the kind, the whole lime Mr. Jay was in Madrid. The Count, also, authorized the French minister to say to Mr. Jay, that he had obtained the consent of the king, on account of his Majesty's respect for the American people^ to invite Mr. Jay to his table " as a private gentle- man of distinction of that country. ^^ But as Mr. Jay held another station besides that of a private gentleman, he never had the honour of dining with the Count. Spain was not willing to accede to the alliance between France and the United States ; for she felt apprehensive, undoubtedly, for her possessions in Florida and Louisiana. She obviously anticipated, at that early hour, many of the diflSculties that have since arisen, and refused to grant to the United States the free navigation of the Missis^ppi, or to establish that river as the western boundary. This business will be better understood by extracting part of the letter of 'Hi; 222 TREATY or '95 WITH SPAIN. *■;■■ ill 111 I; ill instructions written by Congress to Mr. Jay in October '80. The reader will perceive, how very early, in the history of this country, those intricate questions arose with Spain, that subsequently were attended with such sore and increasing trouble. ? *^ It is a fundamental principle, in all lawful government!*, and particularly in the constitution of the British empire, that all the rights of sovereignty arc intended for the benefit of (hose, from whom they are derived, and over whom they are exercised. It is known, also, to have been held for an inviolable principle by the United States, while they remained a pnrt of the British empire, that the sovereignty of the king of England, with all the rights and powers included in it, did not extend to them in virtue of his being acknowledged and obeyed as king by the people of England, or of any other part of the empire, but in virtue of bis being acknow- ledged and obeyed as king of the people of America themselves, and that this principle was the basis, first of their opposition to, and finally of their abolition of, his authority over them. From these principles it results, that all the territory, lying within the limits of the states as tixed by the sovereign himself, was held by him for their particular benefit, and must equally, with his other rights and claims in quality of their sovereign, be considered as having devolv- ed on them in consequence of their resumption of the sovereignty themselves. In support of this position, it may be further observed, that all the territorial rights of the king of Great Britain within the limits of the United States, accrued to bim from the enterprizes, the risks, the sacrifices, the expense in blood and treasure of the present inhabitants and their progenitors. To Spain, claiming the territory about the Mississippi by the right of conquest, it is answered, that a right founded on conquest being only coexten- sive with the objects of conquest, cannot comprehend the circum- jacent territory. That if a right to the said territory depended on the conquests of the British posts within it, the United States have already a more extensive claim to it than Spain can acquire, having, by the success of their arms, obtained possession of all the important posts and settlements on the Illinois and Wabash, rescued the inhabitants from British domination, and established civil gov- ernment in its proper form over them. They have, moreover, established posts on the strong and commanding situation near the TREATY OF '95 WITH SPAIN. 223 mouth of the Ohio, whereas, Spnin has n claim by conquest to no post above the northern bounds of West Florida, except that of the Natchez, nor are there any other British posts below the mouth of the Ohio for ihclr arms to be employed against. That, whatever extent ought to be ascribed to the right of conquest, it must be admitted to have limitations, which in the present case, exclude the pretensions of his catholic majesty. If the occupation by the king of Great Britain of posts within the limits of the United States, as dellned by charters derived from the said king, when consti- tutionally authorized to grant them, makes them lawful objects of conquest to any other power than the United States, it follows, that every other part of the United States, that now is, or may hereafter fall into the hands of the enemy, is equally an object of conquest. Not only New- York, Long Island, and the other islands, in its vicinity, but almost the entire states of South Carolina, and Georgia might, by the interposition of a foreign power at war with their enemy, be forever severed from the American confederacy, and subjected to a foreign yoke. But is such a doctrine consonant to (he rights of nations, or the sentiments of humanity ? Does it breathe that spirit of concord and amity, which is the aim of the proposed alliance with Spain 1 Would it be admitted by Spain, herself, if it affected her own dominions ? Were, for example, a British armament by a sudden enterprizc, to get possession of a sea port, a trading town, or maritime province in Spain, and another power at war with Britain should, before it could be recon- quered by Spain, wrest it from the hands of Britain, would Spain herself consider it as au extinguishment of her just pretensions? Or would any impartial nation consider it in that light ? As to the proclamation of the king of Great Britain of 1763, forbidding bis governors in North America to grant lands westward of the sources of the rivers falling into the Atlantic Ocean, it can by no rule of construction militate against the present claims of the United States. That proclamation, as is clear both from the title and tenor of it, was intended, merely to prevent disputes with the Indians and an irregular appropriationof vacant land to individuals, and by no means either to renounce any parts of the cessions made in the treaty of Paris, or to affect the boundaries established by ancient charters. On the contrary, it is expressly declared, that the lands and territory prohibited to be granted, were within the 'Wb.i 324 TREATY OF '95 WITH SPAIN. sovereignty nnd dominion of that crown, notwithstanding the reser- Tation of them to the use of the Indians." " The river Mis- sissippi will be a more natural, more distinguishable, and more pre- cise boundary than any other that can be drawn eastward of it, nnd coDflequcntly will be less liable to become a source of those dis- putes which too often proceed from uncertain boundaries between nations. As this territory lies within the charter limits of particu- lar states, and is considered by them as no less their property than any other territory within their limits, Congress could not relin- quish it without exciting discussions between themselves and those states. The territory in question contains a number of inhabitants, who are at present under the protection of the United States, and have sworn allegiance to them. These could not, by voluntary transfer, be subjected to a foreign jurisdiction, without manifest violation of the common rights of mankind, and of the genius and principles of the American government." " Congress have the greater hopes, that the pretensions of bis catholic majesty on this subject will not be so far urged as to prove an insuperable obstacle to an alliance with the United States, because they conceive such pretensions to he incompatible with the treaties subsisting between France and them, which are to be the basis nnd substance of it. By article eleventh of the treaty of alliance, eventual and defensive, the posscsuions of the United States are guarantied to them by his most christian majesty. By article 12th of the same treaty, intended to fix more precisely the sense and application of the preceding article, it is declared that this guaranty shall have its full force and effect the moment a rupture shall take place between France and England. The next object of the instructions is the free navigation of the Mississippi for the citizens of the United States, in common with the subjects of his catholic majesty. On this subject, the same inference may be made from article seventh of the treaty of Paris, which stipulates this right in the amplest manner to the King of Great Britain, and the devolution of it to the United States, as was applied to the territorial claims of the latter. Besides, as the United Slates have an indisputable right to the possession of the east bank of the Mississippi for a very great distance, and the navigation of that river will essentially tend to the prosperity and advantage of the citizens of the United States that may reside on the Mississippi, or the waters running TREATY OP '95 WITH SPAIN. 225 into It, it U conceived thnt (he circumstance of Spnin being in possession of the banks on both sides near its mouth cannot be deemed a natural or equitable bar to tlic free u?c of tl»e river. IJut, notwithstanding the equitable claim of the United States to the free navigation of tho Mississippi, and its great importance to them, Congress liave so stronj^ a disposition to conform to the desires of bis catholic majesty, that they have agreed thnt such equitable regulations may be entered into, ns may be requisite security against contraband, provided the point of right be not relinquished, and a free port or ports, below the thirty-first degree of north latitude, and accessible to merchant ships, be stipulated to them. The reason why a port or ports thus described, was requir- ed must be obvious. Without such a stipulation, the free use of the Mississippi would, in fact, amount to no more than a free inter- course with New-Orleans and other parts of Louisiana. From the rapid current of this river, it is well known, that it must be navi- gated by vessels of a peculiar construction, and whicb will be unfit to go to sen. Unless, therefore, some place be assigned to the United States, where the produce carried down the river, and the merchandise arriving from abroad mny be deposited till they can be respectively taken away by the proper vessels, there can be no such thing ns a foreign trade. There is a remaining consideration respecting the navigation of the Mississippi, which deeply concerns the maritime powers in general, but more particularly their most christian and catholic majesties. The country, watered by the Ohio, with its large branches, having their sources near the lalces on one side, and those running nortii-westward and falling into the other side, will appear from a single glance on a map to be of vast extent. The circumstance of its being so finely watered, added to the singular fertility of its soil, and other advantages presented by a new country, will occasion a rapidity of population not easy to be conceived. The spirit of emigration has already shown itself in a very strong degree, notwithstanding the many impediments which discourage it. The principal of those impediments is the war with Britain, which cannot spare a force sufficient to protect the emigrants against the incursions of the savages. In a very few years after peace shall take place, this country will certainly be overspread with inhabitants. In like manner, as in new settle- ments, agriculture, not manufactures, will be their employment. VOL. I. 39 Wt 4iQ THEATV OK '1)6 WITH »1'AIN. r *■ Tlicy will ralsft wheat, corn, Itonf, pork, tobacco, heinp^ flax, nnJ in the soulhcrn parts, pcM'liiip», rice iutil indii^a^ lit gvcinl quantities. On the utiier liand, their coii.siiinptioh uf lort'l;^!! nianiifiictiireH will be in proportion, if they can he exchaiii^eil lor the produce of their soil. Tlicrc arc but two channels through nliicli such commerco of the west can be carried on ; the first is down the river Missis- sippi, the oilier up the rivers having their sources near the lakes, thence, by short portages to the lakes on the rivers falling into them, through the lakes and down the St. Lawrence. The tirjt of these channels is manifestly the most natural and by far the most advantageous. Should it however, be obstructed, the second will be found far from impracticable. " So fair a prospect could not escape the commercial sagacity of Great Britain. She will embrace it with avidity. She would cherish it with the most studious care, and, should she succeed in llxing it in that channel, the loss of her exclusive possession of the trade of the United States might prove a much less decisive blow to her maritime preeminence and tyranny than has been cal- culated."* It ought to be mentioned in this place, that during Mr. Jay's negotiations at Madrid, Spain had no minister or repre> sentative in this country ; and when he left that Court in the year '82, Mr. Cannichael, his secretary, was intrusted by him with the affairs of the legation ; but he was not received in an official manner till February 1783, though the provision- al articles of the treaty of peace had been signed the pre- ceding November. He was accredited as a charge d'affaires, and in his correspondence appears to consider he was prin- cipally indebted for that arrangement to the influence and friendly offices of General la Fayette, f who happened, at * These instructions are long and valuable. We have only ventured to extract a few detached portions of them. The state papers on the Mississippi and the western boundary, are prepared with uncommon care and ability ; — they are, probably, not surpassed by any other docu- ments that the Congress of the confederation, during the war, have left on record ] — all, titles to the gratitude, applause and admiration of posterity. t It is somewhat out of jdace to insert the following letter in tins part of the work, but as we have just met with it, and have no recol- TREATY OF '05 WITH «PA1N. 227 the time, to bo nt Mndihl. On the 22d February Mr. CarinichacI dined with tlio diplomatic body at the Pra- do, a circumstance, that exceedingly surprised some of the foreign ministers, who did not anticipate a formal con- nexion between Spain and the United States was so near at hand. On the 30th of August 1783, Mr. CarroichaePs presenta- tion took place. " On the diiy appointed for my presentation, I waited on Ills Excellency, the Count do Florida Ulnncn, nrul from hU house, accoinpiinicd hy his servant, whom he had the politeness to flcnd with my own, 1 paid my visits to the prhicipal ladies and officers of the I'ahice. This ceremony finished, I went to the King^a apartment, where the minister appointed me to meet him. When his Majesty arose from the table, the Count presented me as charge d'atfaircs of the United States. As I had been informed that the King doth not love long harangues, I contented myself with expressing to his Majesty my satisfaction in being the first of my countrymen, who had the good fortune to assure him of their lection of htiviug seen it in print, its uncommon interest will serve, wo liopo, ns an apology for introducing it hero ; — it is from the secret cor- respondence. " Paris, 25th Moy 1777. " To the Secret Committee. " The Marcpiis dc la Fayette a young nobleman of great family connexions here, and great wealth, is gone to America in a ship of his own, accompanied by some ofllceiH of distinction, in order to serve in our armies. He is exceedingly beloved, and every body's good wishes attend him ; we cannot but hope he may meet with such a re- ception as will make the country and his expedition agreeable to him. Those, who censure it as imprudent in him, do, nevertheless, applaud liis spirit, and we are satisfied that the civilities and respect that may be shown him will bo serviceable to our affairs here, as pleasing not only to his powerful relations and to the Court, but to the whole French nation. He has left a beautiful young wife, and for her sake particularly wc hope that his bravery and ardent desire to distin- guish himself, will be a little restrained by the General's prudence, so as not to permit his being hazarded much but on some important oc- % casion. « BENJ. FRANKLIN, " SILAS DEANE." 228 TREATY OF '95 WITH SPAIN. i(i , i desire to cultivate his amity. He answered me in a gracious manner and with a smiling countenance, saying he hoped I should have frequent occasions for making him the same assuran- ces. The Fioyal Family, dining at the same hour, and separately, and the same etiquette being observed, viz. the presentation after dinner, it required some days to finish the business, the Count Florida Blanca accompanying me ipore than three quarters of an hour each visit, with a politeness and good nature, rarely found in men, who have so many important occupations on their hands. The Prince of Aslurias spoke of me during the dinner as of a per- son he had long known, and when I was presented, he told me so. The Princess, who was present, spoke to me six or seven minutes in French and Spanish, and among other things said, I ought to like Spain, because she was told, I was much esteemed by the Span- iards. I replied, the only title I had to their esteem was my well known regard for the nation." ^ , In 1785, (July) a charge d'affaires, D. Diego Gardoqui, was received and accredited by Congress, from Spain. Upon the arrival of D. Diego Gardoqui at Philadelphia, the negotiation was transferred to this country, and Mr. Jay, then Secretary of State for Foreign Affairs, was authorized, by a special commission of Congress, to treat respecting the boundapes. The subject was beset with a. new difficulty, from the circumstance, that England, in her treaty of the year '83 with this country, acknowledged the claim of the United States to the lands bordering on the Mississippi, to the north of the northern boundary of West Florida, and transferred all her right in the navigation of that river. Shortly after the treaty, the Spanish government protested against the transfer, as in their opinion the English had ceded what they did not own. The arrangement with Spain remained in the hands of the Secretary of State till the dissolution of the Confederation. This was the most difficult, intricate, and vexatious nego- tiation undertaken by that government. Separate from the delays, to which all discussion with the court of the Escu- rial is necessarily incident, and, in this case, from the unrea- sonable demands made by Spain, the business was farther and TREATY OF '96 WITH SPAIN. 229 greatly embarrassed by a division of sentiment in the Ameri- can Congress; — a division unfortunately arising altogether from local influence and r^onsiderations. The northern portion of the confederacy, that i&: to say, New-Hampshire, Massachusetts, Rhode-Island, Connenticut, New- York, New- Jersey, and Pennsylvania, were in favour of concluding a commercial treaty with Spain upon terms of reciprocity, and upon condition of forbearing the use of the Mississippi for twenty-five or thirty years, below the northern boundary of the United States to the ocean. This proposition, as has been seen, was actually made by Mr. Jay to Spain. The arrangement did not, of course, include access to the posses- sions of Spain in the new world ; for it had always been one of the fundamental maxims of that court to exclude all mankind from their American shores. A treaty of this description would certainly have been favourable to Amerir ca, if the position, then assumed, had been correct, namely, that the navigation of the Mississippi was at that period of little importance ; that it would not become valuable in twenty-five or thirty years; and that it could not be called a sacrifice to forbear the use of a thing we do not want. These doctrines, formally maintained in Congress thirty-five years ago, will, perhaps, create no surprise in the minds of those, who are acquainted with the situation of the western country during the early discussion with Spain. The navir gation of the Mississippi certainly did then appear of trifling value, and, considering the amount of population in the Atr lantic states, the great quantities of land, there still unocpur pied, the little accurate knowledge possessed of the territory beyond the Alleghany, there were slight reasons, indeed, for anticipating the vast wealth and population, to which that district has since so rapidly risen. In some of the states, that are now powerful, and have a numerous population, there was not at this period even a settler. With Spain^ * Sp^in claimed both the Floridas,and contended that West Florida extended up the Mississippi higher than the hmit indicated in the trea- ty of this country with England, though in the year '8G she had not clearly determined upon what boundary she should fix. '■J- 230 TREATY OF '95 WITH SPAIN. at the south, and England at the north, both powerful na- tions, and neither desirable neighbours, it was certainly difficult to imagine what temptations could attract into unex- plored regions emigrants from the borders of the Atlantic. This appears to have been the first question, on which the states were seriously divided according to their geogra- phical limits. The matter occupied an unusual portion of the attention of Congress ; — a great variety of propositions were made in relation to it, but no change took place in the votes. The five states south of Pennsylvania, viz : Mary- land, Virginia, North Carolina, South Carolina, and Georgia, were constantly opposed to the northern, and consequently in the minority. We have already said, that the Secretary for Foreign Affairs was directed to prepare a treaty on the : basis of a perfect commercial reciprocity, for a term of twen- - ty-five or thirty years, and to stipulate a forbearance of the navigation during that period, though the right to the naviga- * (ion was by no means intended to be ceded by the act.* On this question the northern portion of the confederation prevailed. It was vehemently and in a most persever- ing manner, opposed by the south ; but part of the opposi- tion was founded in doctrines, that would not at this day be considered sound by any division of the Union ; — sentiments, pntirely at variance with the provisions of the treaty of commerce made with France, with the general principles, attempted to be inserted in all our treaties with Europe, and with the obvious policy of the country, — more especially that, which administrations are now attempting to inculcate. We allude to the objection made to the doctrine of recipro- city, proposed as the basis of the Spanish treaty. We shall extract a paragraph from a report made on the subje^' : " How contrary would such a stipulation (reciprocity) be to the policy of Great Britain, to the policy of her navig-ation act, an act, which gives to her own subjects in their intercourse witliall other * The resolution directing him to conclude a treaty on tliisbnsi?, as an ultimatum, was adopted by Congress on the JJOth August '86, though he was instructed to insist on the boundaries. TREATY OF '95 WITH SPAIN. 231 nations, the high privileges and immunities, they do not enjoy. To the wisdom of this net, and her other regulations in commerce, it is owing, that she hath attained to such a height of power and gran- deur on the seas, as to be at the same time the terror and the admi- ration of the world, that her subjects have obtained such commer- cial wealth and astonishing resources, as to be able to support her in the most splendid enterprizcs, and the longest and most difficult wars, that her councils could devise, or the change of fortune ex- pose her to." ; • 1 : ' It is somewhat unusual to hear the celebrated commercial regulations of Cromwell,* regulations within a few years publicly condemned by one of the wisest, most ingenuous, as well as experienced statesmen England has ever known, receive such remarkable applause in a country, whose whole ambition and policy have been to break through the naviga- tion acts and colonial systems of the European powers, and whose greatest wealth has been accumulated under the re- laxations of those measures, rendered inevitable by wars, or the progress of sound views on commercial subjects. But it was a just ground of objection, that the proposed Spanish treaty was not, in reality, reciprocal ; for we were to have those advantages only in Spain and the Canaries; but were excluded from the Phillipines and the Spanish possessions in America. Another ground was, also, perfectly legitimate and reasonable, and, as time has proved, unanswerable : " As to the surrender or forbearance of the use of the naviga- tion of the Mississippi for the term proposed and for the conside- ration proposed, (the right of the United States to dismetr.ber the government being out of the question) it is inadmissible upon the principle of the right, and, independent of the right, upon the highest principles of national expedience, which apply even if the commercial project were an advantageous one. The states, who have ceded them, and the confederacy at large, look up to the western lands as a substantial fund for the discharge of the public debt. The value of these lands will depend, in a great measure, * The " act of navigation," considered as the foundation of all sub- sequent proceedings, was uriginally passed October 9th, 1G51, and then ftdly adopted on the restoration of Cliailos II. i 232 TREATY OP 'D5 WITH SPAIN. ' • ': a on the navigation of the Mississippi. By the contract with Virgi- nia, it is stipulated, that the western country shall be divided into states, and admitted with the rights of the original states into the confederacy. The spirit of this compact is, that the territory should retain all its rights, and have them promoted under the patronage of Congress. This act would, therefore, be a direct violation of it, and have a tendency to fix the weight of popula- tion on one side of the continent only." — " By the second article of the confederation of these United States, each state retains its sovereignty, freedom, and independence, and every power, juris- diction and right, which is not therein expressly delegated to the United States in Congress assembled. This is a fundamental law of the nation, and the powers granted in the ninth article, to make treaties, must be construed in subordination to it. No treaty, even of peace, entered into by the United States in Congress assembled, extending to a cession or suspension of the rights of any of the states without their consent, can, therefore, be valid, much less can such a treaty of commerce, which in point of political necessity can never be so pressing." The report of a commercial treaty with Spain produced an alarming sensation in the west."^ The Spaniards had 1^. * " A copy of a letter from a gentleman at the fulls of Ohio, to his friend in New England, dated December 4, 1786. "Dear sir, politics, which a few months ago were scarcely thought of, arc now sounded aloud in this part of the world, and discussed by almost every person. The late commercial treaty with Spain, in shut- ting up, as it is said, the navigation of the Mississippi, for the term of twenty-five years, has given this western country a universal shock, and struck its inhabitants with an amazement. Our foundation is affected ; it is therefore necessary that every individual exert himself to apply a remedy. To sell us, and make us vassals to the merciless Spaniards, is a grievance not to be borne. The parliamentary acts which occasioned our revolt from Great Britain were not so barefac- ed and intolerable. To give us the liberty of transporting our effects down the river to New Orleans, and then be subject to the Spanish laws and impositions, is an insult upon our understanding. We know by woful experience that it is in their power, when once there, to take our produce at any price they please. Large quantities of flour, tobac- co, meal, &c. have been taken there the last summer, and mostly con- TREATY OF '95 WITH SPAIN. 233 been prevented by Ibe people from trading up the river; their goods at Vinccnnes and Illinois seized, and they, them- selves, threatened with being driven from the mouth of the fiscated. Tiioso who had permits from their governor, were obliged to sell at a price lie was pleased to state, or subject themselves to lose tlio whole. Men of large ])roperty are already ruined by their policy. What benefit can you on the Atlantic shores receive from this act? The Spaniards from the amazing resources of this river can supply all their own markets at a much lower price than you possibly can. Though this country has been settling but about six years, and that in the nndst of an inveterate enemy, and most of the first adventu- rers fallen a prey to the savages, and although the emigration to this country is so very rapid that the internal market is very great, yet the quantities of produce they now have on hand are inmiense. Flour and pork are now selling here at twelve shillings the hundred ; beef in proportion ; any quantities of Indian corn can be had at nine pence per bushel. Three times the quantity of tobacco and corn can be raised on an acre here that can be within the settlement on the east side of the mountains, and with less cultivation. It is therefore ra- tional to suppose that in a very few years the vast bodies of waters in those rivers will labour under the immense weight of the produce of this rich and fertile country, and the Spanish ships be unable to con- vey it to market. "Do you think to prevent the emigration from a barren country loaded with taxes and impoverished with debts, to the most luxurious and fertile soil in the world ? Vain is t!ie thought, and presumptuous tlie sui)position. You may as well endeavour to prevent the fishes from gathering on a bank in the sea which affords them plenty of nourishment. Shall the best and largest part of the United States be uncultivated, a nest for savages and boasts of prey ? Certainly not. Providence has designed it for some nobler purposes. This is con- vincing to every one who beholds the many advantages and pleasing prospects of this country. Here is a soil, richer to appearance than can possibly be made by art. Large plains and meadows without the labour of hands, suliieient to sup|)ort millions of cattle summer and winter ; cane, which is also a fine nourishment for them, without bounds. The spontaneous production of this country surpasses your imagination. Consequently, I sec nothing to prevent our herds being as numerous here in time as they are in the kingdom of Mexico. Our lands to the northward of the Ohio for the produce of wheat, &c. will, I think, vie with the island of Sicily. Shall all this country now VOL. I. .30 234 TREATY OF '95 WITH SPAIN. Mississippi. The citizens expressed great indignation at the conduct of Congress; they considered themselves sold to the Spaniard, deserted by their government, and the boon offered them, of transporting their goods to the ware-houses of New-Orleans, was regarded, not only as a cruel insult, but as a treacherous sacrifice of property. Affairs had ar- rived at such a crisis, that men spoke seriously of throwing off their allegiance, and seeking the protection of a foreign country. A remarkable emigration suddenly took place to the west at the close of the war. Great numbers of the inhabitants of the Atlantic states, oppressed with taxes and impoverished with debt, crossed the mountains, where they found land cheap, and a soil exceedingly rich ; they met with an enemy in be cultivated entirely for the use of the Spaniards? Shall we be their bondmen as the children of Israel were to the Egyptians ? Shall one part of the United States be slaves, while the other is free ? Human nature shudders at the thought, and freemen will despise those who could be so mean as to even contemplate on so vile a subject. " Our situation is as bad as it possibly can be, therefore every exer- tion to retrieve our circumstances must be manly, eligible and just. " We can raise twenty thousand troops tliis side the Alleghany and Apalachian mountains ; and the annual increase of them by emigra- tion, from other parts, is from two to four thousand. " We have taken all the goods belonging to the Spanish merchants of post Vincennes and the Illinois, and are determined they shall not trade up the river, provided they will not let us trade down it. Pre- parations are now making here (if necessary) to drive the Spaniards from their settlements, ot the mouth of the Mississippi. In case we are not countenanced and succoured by the United States (if we need it) our allegiance will be thrown off, and some other power applied to. Great Britain stands ready with open arms to receive and support us. They have already offered to open their resources for our supplies. When once reunited to them, " farewell, a long farewell to all your boasted greatness." The province of Canada and the inhabitants of these waters, of themselves, in time will be able to conquer you. You are as ignorant of this country as Great Britain was of America. These hints if rightly improved, may be of some service ; if not, bl^me your- selves for the neglect."* * Secret Journals of Congress-, vol. l, p, 3'ZO, &c. * TREATY OF *95 WITH SPAIN. 235 the savages, and in the relentless, monopolizing system ol the Spaniards. But nature had been so profuse in her best gifts to that region, and the Atlantic states were wasting under such an accumulation of debts, struggling with bad governments and highly excited parties, almost approaching, in some instances, to rebellion and anarchy, that settlers soon arrived in crowds on the banks of the great western rivers. While Congress were discussing the points of a treaty, a nation was created there. The question, touching the navigation of the Missis- sippi, was to them a vital one ; and so remarkable is the water communication in that country, that the inhabitants, most deeply planted in the interior, farthest removed from the outlet of this " father of rivers," were equally concerned in the decision of this controversy. But it was not the na- vigation of the Mississippi alone, from which Spain intended to exclude the United States ; her ambition reached, even, to confining them within the Alleghanies. As early as 1782 this design of that court was manifest ; — Dr. Franklin men- tions it in a letter to the Secretary for Foreign Affairs, and advises Congress to adhere both to the navigation and to the boundary of the Mississippi. The confederation did not succeed in making a treaty or arrangement of any kind with Spain. That country appear- ed disposed to agree to nothing, or, in other words, she had not determined what she should claim. The time having nearly approached when the federal government was to be organized, no sort of progress having been made in the ne- gotiation, and great uneasiness still existing in the public mind on the subject of the navigation. Congress dismissed this tedious and vexatious business in September '88, by the following resolution : " Resolved, That the free navigation of the river Mississippi is a clear and essential right of the United States, and that the same ought to be considered and supported as such. Resolved, thai, no further progress be made in the negotiations with Spain by the Secretary for Foreign Affairs, but that the subject, to which they relate, be referred to the federal government, which is to assem- ble in March next." 236 TREATY OF '95 WITH SPAIN. ■ At the organization of the federal government, Mr. Car- michael of Maryland, originally the secretary of Mr. Jay, re- mained at Madrid as charge d'affaires of this country. He was not engaged in any negotiation, and our aflairs with Spain remained, till the latter part of the year '91, in the si- tuation in which they were left by the confederation. At that time, an intimation was officially given, that Spain was disposed to treat at Madrid on one of the subjects then un- settled, viz. the navigation of the Mississippi. This notice related to a matter of too great importance to this country to be neglected, though the former conduct of the Spanish court, or of the agents of that government in the United States, could not inspire much confidence that the business would be brought to a speedy or satisfactory termination. Commissioners were, however, appointed v/ithout delay to proceed to Madrid. Mr. Carmichacl, and Mr. Short, then charge at Paris, were named for that purpose, though their commission was afterwards extended to include the bounda- ries and a commercial arrangement. As to the latter part of it, the United States proposed to place Spain on the foot- ing of the most favoured nation ; and on that basis treaties then existed with France, Prussia, Sweden and Holknd ; — the former country was equally entitled to the privilege with either of these last named powers. Indeed, Spain was the only European nation, with the exception of France, that had declared war against England during the revolution, though, before the peace of '83, England became involved with Holland. The other points to regulate were those of the navigation and the limits of the Mississippi. We cannot do better than quote, from a report of the Secretary of State of the year '91, some remarks on one of these subjects, par- ticularly as the navigation of the Mississippi was among the most important questions brought into discussion, since the independence of the country : " Our right to navigate the Misi^issippi from its source to where our southern boundary strikes it, is not questioned. It is from that point downwards only that the exclusive navigation is churned by Sp.i'n; that is to say, where she holds the country on both sides, to wit, Louisiana on the west and Florida on the east. TREATY or '96 WITH SPAIIT. 237 " Our right to participate in the navigation of that part of the river also, is to be considered under " I. The treaty of Paris of 1763. " 2. The revolution treaty of 1782-3. " 3. The law of nature and nations. " 1. The war of 1755-1763 %vas carried on jointly l»y Great Britain and the thirteen colonies, now the United States of Ameri- ca, against France and Spain. At the peace, a right was secured to the subjects of Great Britain to navigate the Mississippi in Its whole breadth and length, from its source to the sea, and express- ly that part which is between (he island of New Orleans and the right bank of the river, as well as the passage both in and out of its mouth ; and that the vessels should not be stopped, visited, or subjected to the payment of any duty whatsoever. These are the words of the treaty, article vii. Florida was, at the same time, ceded by Spain, and its extent westwardly was fixed to the lakes Pontchartrain and Maurepas and the river Misj^issippi ; and Spain received soon after from France a cession of the island of New Orleans, and all the country she held westwardly of the Mississippi, subject of course to our right of navigation between that country and the island previously granted to us by France. This right was not parcelled out to us in severalty, that is to say, to each the exclusive navigation of so much of the river as was adjacent to our several shores, in which way it would have been useless to all, but it was placed on that footing on which alone it could be worth any thing, to wit, as a right to ail to navigate the whole length of the river in common. The import of the terms and the reason of the thing prove it was a right of common in the whole, and not a several right to each of a particular part. To which may be addr ed the evidence of the stipulation itself, that we should navigate between New Orleans and the western bank, which, being adja- cent to none of our states, could be held by us only as a right of common. Such was the nature of our right to navigate the Missis- sippi, as far as established by the treaty of Paris of 1763. " 2. In the course of the revolutionary war, in which the thirr teen colonies, Spain and France, were opposed to Great Britain, Spain took possession of several posts held by the British in Flori- da. It is unnecessary to enquire whether the possession of half a dozen posts scattered through a country of seven or eight hundred S38 THEATY OF '95 WITH gPAIW. miles extent could be considered ns the possession and conquest of that country. If it wns, it gave still but an inchoate right, ns was before explained, which could not be perfected but hy the relin- quishment of the former possession at the close of the war ; but certainly it could not be considered as a conquest of the river, even against Great Britain, since the possession of the shores, to wit, the island of New Orleans on the one side, and Louisiana on the other, having undergone no change, the right in the water would remain the same, if considered only in its relation to them ; and if considered as a distinct right, independent of the shores, then no naval victories obtained by Spain over Great Britain in the course of the war gave her the colour of conquest over any water which the British fleet could enter. Still less can she be considered as having conquered the river, as against the United States, with whom she was not at war. We had a common right of navigation in the part of the river between Florida, the island of New Or- leans, and the western bank, and nothing which passed between Spain and Great Britain, either during the war, or at its conclusion, could lessen that right. Accordingly, at the treaty of November 1782, Great Britain confirmed the rights of the United States to the navigation of the river, from its source to its mouth, and in January 1783, completed the right of Spain to the territory of FIo« rida by an absolute relinquishment of all her rights in it. This relinquishment could not include the navigation held by the United States in their own right, because this right existed in themselves only, and was not in Great Britain. If it added any thing to the rights of Spain respecting the river, between the eastern and west- em banks, it could only be that portion of right which Great Bri- tain had retained to herself in the treaty with the United States, held seven weeks before, to wit, n right of using it in common with the United States. " So that as, by the treaty of 1763, the United States had obtain- ed a common right of navigating the whole river from its source to its mouth : so, by the treaty of 1782, that common right was confirmed to them by the only power who could pretend claims against them, founded on the state of war; nor has that common right been transferred to Spain by either conquest or cession. " 3. If we appeal to this, as we feel it written on the heart of man, what sentiment is written in deeper characters than that the TRBATY OF '95 WITH IPAIN. 339 ocean is free to all men, and their rivers to all their inhabitants f Is there a mtin, savng^e or civilized, unbinsscd by habit, who does not feel nnd attest Ibis truth ? Accordingly, in nil tracts of country united under the same political society, we find this natural right universnily acknowledged and protected by laying the navigable rivers open to all their inhiibitunts. When their rivers enter thd limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act offeree by a stronger society against a weaker, condemned by the judg* ment of mankind. The late case of Antwerp and the Scheld was a striking proof of a general union of sentiment on this point ; as it is believed that Amsterdam had scarcely an advocate out of Hol- land, and even there its pretensions were advocated on the ground of treaties, and not of natural right. (The commissioners would do well to examine thoroughly what was written on this occasion.) The commissioners will be able, perhaps, to tind, either in the practice or the pretensions of Spain, as to the Douro, Tagus, and Guadiann, some acknowledgments of this principle on the part of that nation. This sentiment, of right, in favour of the upper inha- bitants, must become stronger in the proportion which their extent of country bears to the lower. The United States hold 600,000 square miles of inhabitable territory on the Mississippi and its branches, and this river and its branches afford many thousands of miles of navigable waters penetrating this territory in all its parts. The inhabitable grounds of Spain below our boundary and border- ing on the river, which alone can pretend any fear of being incom- moded by our use of the river, are not the thousandth part of that extent. This vast portion of territory of the United States has no other outlet for its production?, and these productions are of the bulkiest kind. And in truth their passage down the river may not only be innocent, as to the Spanish subjects on the river, but can- not fail to enrich them far beyond their present condition. The real interests then of all the inhabitants, upper and lower, concur in fact with their rights. ^^ If we appeal to the law of nature and nations, as expressed by writers on the subject, it is agreed by them, that were the river, where it psisses between Florida and Louisiana, the exclusive right of Spain, still an innocent passage along it is a natural right in those, inhabiting its borders above. It would indeed be what those wri- 240 TREATY OF '95 WITH SPAIN. :'t! ten call nn imperfect right, because the modification of iti exer- cise depends in n connidorable degree on the conveniency of the nation through tvliich thoy are to pass, iiut it is still a right ai real as any other right, liowcver well defined ; and were it to be refused, or to be so sliaclticd l)y regulations not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand rc«lres9. The right of the upper inhabitants to use this navigation is the counterpart to that of those possessing the shores below, and founded in the same natural relations with the soil and water. And the line at wliich their rights meet is to be advanced or withdrawn, so as to equalize the inconveniences re- sulting to each party from the exercise of the right by the other. This estimate is to be fairly made with a mutual disposition to make equal sacritices, and the numbers on e ch side are to have their due weight in the estimate. Spain holds so very small n tract of habitable land on cither side below our boundary that it may in fact be considered as a strait in the sea ; for though it is 8U leagues from our boundary to the mouth of the river, yet it is only here and there in spots and slips that the land rises above the level of the water in times of inundation. There are then and ever must be so few inhabitants on her part of the river that the freest use of its navigation may be admitted to us without their annoyance. For authorities on this subject, see Grot. L. 2. c. 2. § 1 1, 12, 13, c. 3. § 7, 0. 12. I'uflendorf, L. 3. c. 3. § 3, 4, 5, G. Wolff's Inst. § 310, 311, 312. Vattel, L. 1. § 292. L. 2. § 123 to 139. " It is essential to the interests of both parties that the navigation of the river be free to both, on the footing on which it was detined by the treaty of I'aris, viz. through its whole breadth. The chan- nel of the Mississippi is remarkably winding, crossing and re-cross- ing perpetually from one side to the other of the general bed of the river. Within the elbows thus made by the channel there is generally an eddy setting upwards, and it is by taking advantage of these eddies, and constantly crossing from one to another of them, that boats are enabled to ascend the river. Without this right the whole river would be impracticable both to the Americans and Spaniards. " It is a principle that the right to a thing gives a right to the means without which it could uot be used, tiiat is to say, that the TBBATY or '95 WITH SPAIN. 841 menni follow the end. Thus n right to noTignte n river drawa to it a right to moor vessels to its shores, to land on them in cases oi* distress, or for other necessary purposes."* The government had been engaged in its Spanish nego- tiation for twelve years. Some of the nations of Europe, such as Austria, had refused to receive and acknowledge our ministers, and although this might be matter of regret, it could not be of complaint. But Spain, early in the revo- lution embarked as an associate against the common enemy, had in other respects manifested a conduct, far, indeed, from being friendly. During hostilities, America, contending for her independence uith very feeble means, had not rendered that country any essential services ; and, instead of being able to confer obligations, sought assistance from foreign states. Spain entered into the contest, not certainly in con- sequence of any contract or convention with the United States ; but stimulated, probably, by the prospect of aggran- dizement in her American colonies. Mr. Short, having arrived in Madrid, the commissioners were regularly received and accredited in the beginning of February '93. The negotiation was conducted with Don Diego Gardoqui, formerly a charge in America. We shall insert in this place the instructions prepared in 1790 for Mr. Carmichael, respecting the Mississippi. They are re- duced to an abridged form, and develope many important political movements and considerations of those times. Heads of consideration on the navigation of the HHssissippi. " Vfehave aright to the navigation of the Mississippi — 1, by nature, ~——— 2, by treaty. It is necessary to u8. More than half the territory of the U. S. is on the waters of that river. 200,000 of our citizens arc settled on them — of whom • On the subject of the navigation of rivers, we refer the rentier to the articles of the Congress of Vienna of 1815, respecting the naviga- tion of the Rhine, the Necknr, tlie Mnin, tlic Mosollc, the Meuse and the Sfheld, particularly. State Paper No. 16. — "Regulations for the Free Navigation of Rivers." (Schoell, Recueil dea Pieces Officielles, &c. Tom. viii.) VOL. I. 31 4 342 TREATY OF '95 WITH 8PAIW. 40,000 bear arms. These have no other outlet for their tobacco, rice, corn, hemp, lumber, house timber, ship timber. Wc have hitherto respected the indecision of Spain, because we wish peace : because our western citizens have had v^nt at home for their productions. .^ A surplus of production begins now to demand foreign markets. Whenever they shall say, " we cannot, we will not be longer shut up,'' the U. S. will be reduced to the following dilemma — 1. to force them to acquiescence, 2. to separate from them, rather than take part in a war against Spain^ , • 3. or to preserve them in our union by joining them in the war. The 1st is neither in our principles, nor in our power. 2. A multitude of reasons decide against the 2d — it may suffice to speak out one : were we to give up half our territory rather than engage in a just war to preserve it, we should not keep the other half long — , - " 3. The 3d is the alternative we must necessarily adopt. How are we to obtain that navigation? A. By Force. I. Acting separately. That we can effect this with certainty and promptitude, circum- stances decide. Objection — We cannot retain New Orleans, for instance, were we to take it. • . , Answer — A moderate force may be so secured as to hold out till succoured, — ' •'■ our succours can be prompt and effectual, — ' suppose after taking it we withdraw our force. ■ .'-'•'• V If Spain takes it by an expedition, we can recover it by a counter expedition, — i j'.rt.- and so, as often as the case shall happen. : ;- ' ^ Their expeditions will be slow, expensive, and lead to . ^ , catastrophe; — Ours sudden, economical, and a check have no conse- « , , quenccs. ^vt. We should associate the country to our union,-— •' ;. . ;.' the inhabitants wish this, — : TREATY OP '96 WITH SPAIN. 243 16 war. f conse- they are not disposed to be of the Spanish govern- D'cnt. j It is idle in Spain to suppose our western inhabitants u'ill unite with them — they could be quiet but a short ; time under a government so repugnant to tlieir feel- ings — were they to come under it for present pur- Hu,' poses it would be with a view to throw it off soon — should they remain they would communicate n spirit of independence to those, with whom they should 1)6 mixed. II. Acting in conjunction with Great Britain and with a view to par- tition. — The Floridai and Island of JVew Orleans would be as- signed to us. '-- -I •' • . • ' Louisiana (or all the western waters of the Mississippi) to them — we confess that such an alliance is not what we would wish — because it may eventually lead us into embarrassing situations with our best friend — and put the power of two neighbours into the hands of one. Lord Lan^^owne has declared, he gave the Floridas to Spain rather than the U. S,, as a bone of discord with the house of Bour- bon, and of reunion with Great Britain. Connolly''s attempt (as well as other facts) proves they keep it in view. B. By negotiation. ^^iv _ ~ I. What must Spain do of necessity ? - -^ .,- - n/ The conduct of Spain has proved that the occlusion of the Mississippi is system with her. ' ' " " *^ i r <'i -^ If she open it now, it wiii be, because forced by imperious cir- cumstances. She will consequently shut it again when these circumstances cease. Treaty will be no obstacle — f ' - 1 'i i Irregularities, real or pretended in our navigators, will furnish colour enough. ■' - '!, f 'r' * Perpetual broils, and finally war will ensue. Prudence and even necessity impose on us the law of settling the matter now finally, and not by halves. With experience of the past and prospect of the future, it would be imbecility in ua to accept the naked navigation. 'mi 244 TREATY OP '95 WITH SPAIN. With that we must have what is necessary — ^^ 1. to its use, and without which it would be useless, — 2. to secure its continuance. That is a port near the mouth to receive our vessels and protect the navigation — so well separated in jurisdiction and fact as to avoid the danger of broils. But even thin will not secure the Floridas and Louisiana against Great Britain — If we are neutral she will wrest those possessions from Spain, — the inhabitants (French, English, Scotch, American) would pre- fer England to Spain. ., •> iu '^H^^^sis ii II. What then had Spain better do of choice ? Cede to us all territory on our side the Mississippi on condition that wc guaranty all her possessions on the western waters of that river. She agreeing further, to subsidize us, if the guaranty brings us into the war. Should Great Britain possess herself of the Floridas and Louisi- ana, her governing principles are conquest, colonization, com- merce, monopoly — She will establish powerful colonies in them ; — ' ^ - these can be poured into the gulph of Mexico for any sudden enterprize there, — ►' * r-- h or invade Mexico, their next neighbour, by land, — whilst a fleet cooperates along shore and cuts off relief, — and proceed successively from colony to colony. With respect to us, if Great Britain establishes herself on our whole land board, — , a our lot will be bloody and eternal war, — .:.!',; or indissoluble confederacy. ., ^, Which ought we to choose? What will be the lot of the Spanish colonics in the jaws of such a confederacy ? What will secure the ocean against monopoly ? Safer for Spain that we should be her neighbour than England. Conquest not in our principles, — inconsistent with our govern- ment, — not our interest to cross the Mississippi for ugesy — and will never be our interest to remain united with those who do. TREATY OP '95 WITH SPAIN. 245 Intermediate chances save the trouble of calculating so far for- ward. Consequences of this cession and guaranty. 1. Every subject of difference will be removed from between Spain and the United States — 2. Our interest will be strongly engaged in her retaining her American possessions. 3. Spain will be quieted as to Louisiana, and her territories west of that. 4. She may employ her whole force in defence of her islands and southern possessions. 5. If we preserve our neutrality, it will be a very partial one to her. 6. If we are forced into the war, it will be as we wish on the side of the house of Bourbon. 7- Oa> [;»r'.:«-.»l Thomas Pinkncy, of South Carolina, having been nomi-r nated the preceding November envoy extraordinary, arrived in Madrid in '95, before the conclusion of the peace with France.* He was sent from London as a special minister, with instructions to propose a settlement. Spain finally made a sacrifice of the limits and the Mississippi, but it was done with the utmost reluctance ; and it was not till October that the treaty was signed. f So much delay was again rer * This mission was successively ofiered to Patrick Henry nnij Thomas Jeflursoii. t This is a treaty of fiiendsliip, limits and navigation. It contains no stipulations respecting coiiinierco, ns it relates to the intercourse of the two nations ; it defines the right of search, hut not that of block- ade, and contains the usual stipulation on the head of trade with an enemy's ports : • " Art. 2. The southern boundary of the United States, which divides their territory from the S|)anish colonies of Eiist and West Florida, shall be designated by a line beginning on the river Mississippi, at the northernmost part of the thirty-lirst degree of latitude north of the 254 TRRATY or '96 WITH SPAIN. sorted to, that Mr. Pinkney demanded his passports to return to England. This treaty, usually called the treaty of San Lorenzo el Real, was properly a convention only of limits equator, which froni thonco shall bo drnwn due east to the inidille of the rivor Apalochicolu, or Catahoucho; thcrico a\ung the niiddio thereof to it!* junction with the Flint; tlicnco Ntrait to the head of St. Mary's river, nnd tlienro down the middle thereof to the Atlantic ocean. And it is agreed, that if there should he any troops, garrisons, or settlements of cither party, in the territory of the other, according to the above mentione "Art. 10. In cases of wrecks, &c. each party to afford the other the same assistance it would give to its own citizens or subjects under similar circumstances, &c. TRKATT or '05 WITH SPAIN. 253 and navigation ; for it did not contain a commercial regu1a<' tion. The boundaries both to the south and the west were fixed agreeably to the demands of the United States ; they *' Art. 11. Riglit ofdcviso, donation, and ofinlicritanco, with respect to personal goodn, sociired to the citizonsi or aul)jccts ofcuch party, in the dominions of the other, &c. ''Art. 13. Merclinnt ships of one party, making for a port of an enemy of the otlicr, obliged to exhibit pnsiiports and certificates, &c. " Art. 13. In cnso of wur between the parties, one yeor, after pro- rlumation of it, allowed to citizens and subjects, respectively, to settle Oieir affairs, &c. *' Art. 14. No subject of Spain to take a commission from a third power with whom the United States are at war, to cruise against the citizens, &c. of the latter : Nor any American citizen to take a com- mission from a power with which Spain is at war, to cruise ogainst the persons and property of Spaniards. - "Art. 15. Free trade allowed with on enemy: And from one ene- my port to another enemy port, either directly or indirectly. Free ships to make free goods : Contraband goods excepted. Free ships to protect persons, unless they are soldiers in the actual service of an enemy. "Art. 10. This liberty of navigation nnd commerce shall e.yterd to all kinds of merchandises, excepting those only which are distinguish- ed by the name of contraband ; and under this name of contraband, or prohibited goods, shall be comprehended, arms, great guns, bombs with the fusees, and the other things belonging to them, cannon ball, gunpowder, match, pikes, swords, lances, speors, halberds, mortars, petards, grenades, saltpetre, muskets, musket ball, bucklers, helmets, breast plates, coats of mail, and the like kinds of arms, proper for arm- ing soldiers ; musket rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandises which fol- low, shall not be reckoned among contraband or prohibited goods ; that is to say : all sorts of cloths, and all other manufactures woven of any wool, flax, silk, cotton, or any other materials whatever ; all kinds of wearing apparel, together with all species whereof they are used to be made ; gold and silver, as well coined as uncoined ; tin, iron, latten, copper, brass, coals ; as also wheat, barley and oats, and any other kind 6f corn and pulse ; tobacco, and likewise all manner of spices, salted and smoked flesh, salted fish, cheese and butter, beer, oils, wines, sugars and all sorts of salts: and, in general, all provisions, which serve for the sustenance of life : furthermore, all kinds of cot- ton, hemp, flax, tar, pitch, ropes, cables, sails, sail cloths, a>ichori>. 256 TREATY OF '95 WITH SPAIN. will be found in the 2d and 4th articles. The whole breadth of the Mississippi was ceded, during tlie term of the treaty, for navigation, though his catholic majesty was authorized to and any parts of anchors, also ships' masts, planks, and wood of all kind, and all other things ])roper either for building or repairing ships, and all other goods whatever, which have not been worked into the form of any instrument prcjjared for war, by land or by sea, shall not be reputed contraliand ; much less, such as have been already wrought and made up for any other use ; all which shall be wholly reckoned among free goods : as likewise, all other merchandises and things, which are not comprehended and particularly mentioned in the fore- going enumeration of contraband goods : so that they may be trans- ported and carried in the freest manner by the subjects of both par- ties, even to places belonging to an enemy, such towns or places being only excepted, as are at that time besieged, blocked up, or in- vested. And, except the cases in which any ship of war, or squad- ron, shall, in consequence of storms or other accidents at sea, be un- der the necessity of taking the cargo of any trading vessel or vessels, in which case they may stop the said vessel or vessels, and furnish themselves with necessaries, giving a receipt, in order that the power to whom the said ship of war belongs, may pay for the articles so taken, according to the price thereof, at the port to which they may appear to have been destined by the ship's j)apers: and the two con- tracting parties engage, that the vessels shall not be detained longer than may be absolutely necessary for their said ships to supply them- selves with necessaries. That they will immediately pay the value of the receipts, an.l indemnify the proprietor for all losses which he may have sustained in consequence of such transaction. "Art. 17. One of the parties being engaged in war, the vessels of the other must be furnished with sea letters or passports, &c. "Art. 18. Vessels of war of either ])arty, visiting merchantmen of the other, under the right of search, to remain out of cannon shot, and board, in a boat, with two or three men only. "Art. 19. Each party permitted to establish consuls in the ports of the other, &c. " Art. 20. It is also agreed, that the iidiubitants of the territories of each party shall respectively have free access to the courts of justice of the other, and they shall be porn.ittod to prosecute suits for the re- covery' of their i)roperties, the payment of their debts, and for ol)taiu- ing satisfaction for the daumges which tlicy may have sustained, whether the persons wjiom they may sue be subjects or citizens of the country in which they may be found, or any other persons whatsoever, m TREATY OF '95 WITH SPAIN. 267 cede, by a special convention, the same to any other nation. A right of deposite for goods at New Orleans, on condition of paying a reasonable price for storage, was obtained, and a who may have taken refuge therein ; and the proceedings and sen- tences of the said courts shall be the same as if the contending parties had been subjects or citizens of the said country. "Art. 21. In order to terminate all differences on accoimt of the losses sustained by the citizens of the United States, in consequence of their vessels and cargoes having been taken by the subjects of bis Catholic Majesty, during the late war between Spain and France, it is agreed, that all such cases shall be referred to the final decision of commissioners, to be appointed in the following manner : His Catholic Majesty shall name one commissioner, and the President of the United States, by and with the advice and consent of their Senate, shall ap- point another, and the said two commissioners shall agree on t)ie choice of a third, or if they cannot agree so, they shall each propose one person, and of the two names so proposed, one shall be drawn by lot in the presence of the two original commissioners; and the person whose name shall be so drawn, shall he the third commissioner: and the three commissioners so appointed, shall be sworn imparlially to examine and decide the claims in question, according to the merits of the several cases, and to justice, equity, and the laws of nations. The said commissioners shall meet and sit at Philadelphia : and in the case of the death, sickness, or necessary absence of any such commissioner, his place shall be supplied in the same manner as he was first appoint- ed, and the new commissioner shall take the same ouths, and do the same duties. They shall receive all complaints and applications au- thorized by this article, during eighteen months from the day on which they shall assemble. They shall have power to examine all such persons as come before them, on oath or affirmation, touching the complaints in question, and also to receive in evidence all written testimony, authenticated in such manner as they shall think proper to require or admit. The award of the said commissioners, or any two of them, shall he final and conclusive, both as to tlie justice of the claim and the amount of the sum to be paid to the claimants ; and his Catholic Majesty undertakes to cause tlie same to be paid in specie, without deduction, at such times and places, and under such condi- tions, as shall he awarded by tlje said commissioners, "Art. 22. And, in consequence of the stipulations contained in the fourth article, his Catholic Majesty will permit the citizens of the Unit- ed States, for the space of three years from this tiujc, to dc]>usitc their VOL. I. 33 258 TREATY OF '95 WITH SPAIN. condition that if the same right was not renewed, another place of deposite should be granted. The principle, that the flag covered the merchandise vas also recognised, and con- trabands were remarkably curtailed. The firmness and per- severance of the government in refusing to conclude a treaty without a recognition of the limits and navigation, were well rewarded in the end. While the mouth of the Mississippi remained closed, the fertile territories of the western witters were substantially withheld from all the benefits of a mar- ket, the population checked, the price of land kept down, and the people themselves, were not only in some degree beyond the just control and influence of the national govern- ment, but it could not be expected, they should feel the same degree of attachment to the union as the inhabitants of the Atlantic states, who were enjoying all possible prosperity under the protection of its laws. Every step of the negotiations with Spain has been mark- ed by delays and difficulties. It was fifteen years before that country would consent to consign in a treaty the legiti- mate limits of the United States, and yet, the only boundary, that could reasonably give rise to controversy, the southern boundary of Georgia, (for Great Britain ceded in '83 the Floridas to Spain without any specific limits, and to the United States her own claims to all territory north of the 3 1st degree of north latitude,) was a very slight obstacle to the termination of the negotiation. After all, this boundary was not drawn, nor the Spanish troops withdrawn till '98, three years after the signature and ratification of the treaty of San Lorenzo el Real. Unut. the provisions of the 3d article, Mr. Andrew Ellicot was appointed, on the part merchandises and effects in the port of New Orleans, and to export them from thence without paying any other duty than p. fair price for the hire of the stores ; and his Majesty promises cither to continue this permission, if he finds, during tliat time, that it is not prejudicial to the interests of Spain ; or if he shouhl not agree to continue it there, he will assign to them, on another part of the banks of the Mississip- pi, an etjuivalent establishment." This treaty was signed the 27th day of October 1795. TREATY OF '96 WITH SPAIN. 359 another that the id con- nd per- a treaty 5 re well 3Sissippi 1 welters a mar- t down, degree govern- eel the itants of osperity n mark- i before le legiti- )undary, southern '83 the 1 to the of the stacle to oundary ill '98, treaty the 3d le part export price for liiuie this dicinl to it there, ississip- thc 27th of the United States, commissioner to run the southern boundary; he repaired to Natchez as soon as possible af- ter the ratification. But the country was not evacuated, as we have said, for three years, though by tbe 2d article, all troops, garrisons, and settlements, were to be removed within the space of six months after that formal act. An equal delay took place in the running of the boundary line. This tardy execution of the treaty was justified under various pretences. The Spaniards having been at some ex- pense in erecting new or repairing old fortifications, and it not being stipulated whether they should be demolished, or left standing, refused to deliver them in their actual state. But, it is a new idea in diplomacy, that to withdraw, means to demolish. When it is the intention of the parties that works should be destroyed or paid for, it is always so stipu- lated. When a country is ceded, it is ceded in statu quo, unless otherwise agreed. In this case, the Spanish troops were to evacuate, and were allowed to take their '' goods and effects" with th:^ni. The same expressi'^rj, as to with- drawing, occurs in the treaty between the United States and Great Britain ; — the troops were withdrawn and the works left standing. In the same year ('83), Great Britain ceded the Floridas to Spain, and her troops evacuated the territory without demolishing the fortifications. No maxim in pub- lic law is of higher and more general authority, than that " it is not allowable to interpret what has no need of inter- pretation." The American government subsequently con- sented that the fortifications should be demolished. The Spaniards, also, refused to evacuate the Walnut Hills, a principal post on the eastern bank of the Mississippi, near the confluence of the Ya:70o and that river, a degree and a half to the northward of the boundary line. They alleged, it was necessary to retain this post in order to protect Upper Louisiana against an English expedition from Canada ; Spain having declared war against England in October '96. This expedition could not proceed without violating the territory of the United States, and every possible assurance was fur- nished, that no such enterprize had ever been contemplated. Even if this pretence was well ioundccl, the Spaniards obvi- 2G0 TREATY OF '96 WITH SPAIN. ously had no right to retain territory or fortifications formerly ceded. The other pretexts were equally frivolous, and des- titute of defence. We refer the reader, for the details of the transaction, to Mr. Ellicot's Journal, published in 1803. ' A short time after this difficulty was overcome, and a de- tachment of American troops put peaceably in possession of the country, an alarming and distressing event took place at New Orleans. From the time of the ratification of the treaty, not only the navigation of the Mississippi had been fully enjoyed, but the right of deposite, under the 2 2d arti- cle, had been constantly used, and found highly beneficial. Spain was allowed, under the provisions of the treaty, to suspend this right at the expiration of three years, at the par- ticular spot of New Orleans. But that period having pass- ed, nay, the seventh year of the privilege being entered upon, no suggestion having been given, that it was prejudi- cial to the interest of Spain, on the contrary, the parties ap- pearing to derive great advantages from it, theie was no cause to apprehend, that the right would be revoked. The act of the intendant Morales, suspending the right of deposite, promulgated the 2d Oct. 1802, excited, therefore, as much surprise, as alarm and indignation. We shall insert the de- cree issued on this occasion ; and it is necessary to remark, that these difficulties, though the act of the intendant was disowned by the Spanish government, were not entirely re- moved till the final transfer of Louisiana to the United States : ■ '^ '" ' ' - - - .n'ni^t^u, " As long as it was necessary to tolerate the commerce of neu- trals, which is now abolished, it would have been prejudicial to the province, had the intendant, in compliance with his duty, pre- vented the deposite in this city of the property of the Americans, granted to them by the 22d article of the treaty of friendship, lim- its and navigation of the 27th October 1795, during (he limited term of three years. When the publication of the ratification of the treaty of Amiens,* and the reestablishment of the communica- * It is evident, that tlie pacification in Europe induced the intend- ant to revolce the deposite, in order that the trade might fall into the hands of the Spaniards ; for, while the war continued, they could not conduct it. TREATY or '95 WITH SPAIN. 261 )rroerly nd des- 3taUs of 1 1803. id a de- ssion of place at of the id been 2d arti- neiicial. eaty, to the par- ng pass- entered prejudi- tties ap- \vas no 1. The leposite, as much the de- remark, lant was irely re- United of neu- icial to uty, pre- nericans, lip, litn- limited cation of munica- e intend- into the :ouId not tion between the English and Spanish subjects took place, that in- convenience has ceased. Considering that the 22d article of the said treaty takes from me the power of continuing the toleration, which, necessity required, since, after the fulfilment of the said term, this ministry can no longer consent to it, without an express order of the king : Therefore, nnd without prejudice to the expor- tation of what has been admitted in proper time, I order, that from this date, the privilege, which the Americans had, of importing and depositing their merchandise and effects in this capital, shall be interdicted.'" Under the head of France, we have given an account of the transfer of Louisiana to this country. That subject does not belong at all to this part of our history ; as Louisiana, at the time of the cession, was the property and in the posses- sion of B'rance. Spain, however, was exceedingly opposed to this arrangement, and showed great reluctance to evacuate the territory. In the outset, a formal protest was made by that court against the transfer ; but she was induced in the end to withdraw it, and to give her consent to the conven- tion of April 1803, between France and the United States.* We are not acquainted with the secret history of the treaty of St. Ildefonso, by which Louisiana was " retroceded to * The ground of the opposition of Spain to the transfer of Louisia- na, separate from any secret ;irticle& that may have existed in the treaty, undoubtedly was, that France had not fulfilled on her part the conditions, in consideration of which the retrocession was made. It is notour purpose to enter into the intricacies of the negotiations of that period. It is sufiicient to remark, tiiat the secret treaty of St. Ildefon- so of 1800, the treaty of Luneville of 1801, and of Madrid of the same year, created the modern kingdom of Etruria, for the benefit of the prince of Parma, who had married a daughter of Charles IV. of Spain, and who, according to the Spanish order, was the eventual successor to that throne. In consideration of this creation, Louisiana, the duchy of Parma and Placentia were transferred to France ; and it is supposed, that the prince of Parma, become of Ftruria, signed, soon after, a re- nunciation of the Spanisli throne. In 1807, by the convention of Fon- tainbleau, Etruria was ceded to Napoleon Bonaparte, and tlie reign- ing family transferred to a government, styled Northern Lusitania, made out of the Portuguese provinces of Eutre Duero y Minho. Ai 262 TREATY OF '95 WITH SPAIN. France." The third article is the only one that is known, and that has heen already quoted. But it has usually heen said, that to the transfer was annexed a condition, either that France should not cede Louisiana to any other power, or if she should hereafter wish to alienate it, the preference should be given to Spain. There is little doubt, that there was some secret stipulation or other of that kind ; for the very news of the transfer to the United States, awakened not only surprise, but even indignation in Spain. It is well known, that the Spanish government, at first, refused to ac- knowledge the validity of it ; and did not, as it was, yield the whole province, without an angry and protracted discus- sion, which had nearly involved the two countries in a war. Indeed, taken in connexion with the suspension of the depo- site at New Orleans, and the depredations on our commerce, a committee of the House of Representatives of Congress reported, in January 1806, that there was ample cause for a formal declaration of war against Spain. -■ The difficulties this country has had with Spain, respect- ing boundaries and territories, were, indeed, remarkable. We may attribute the circumstance in some degree to the ignorance generally existing respecting the countries in de- scription ; they had never been surveyed, and in the treaties with France, Spain and England, by which they had often changed owners, their limits were never accurately defined. In particular, the article of cession of Louisiana by France to this country, was most likely to lead to doubt and contro- versy, for the language was of an unusual description to em- ploy in describing the bounds of a territory. The discussion respecting the portion of West Florida to the westward of the Perdido, began between the two governments at the time of the cession of Louisiana, in 1803, and was not con- cluded till 1810, when, the Bourbon family in Spain having been dethroned, the United States thought it imprudent longer to delay enforcing their right. Possession was ac- cordingly taken of that territory by Governor Claiborne in that year, by order of the President. The negotiation, concerning the eastern as well as west- TREATY OF '95 WITH SPAIN. 263 ern boundaries of Louisiana, was not only tedious and vexa- tious, but exceedingly inf»-! te. Of the western limits, we shall speak hereafter ; at present, we shall give a brief ac- count of the eastern. The boundary of Louisiana, when in the hands of the French, before the treaty of 1763, extend- ed on the east to the river Perdido. The country farther to the east of that, part of which has since been called West Florida, was then known by the general name of Florida. The celebrated treaty of peace and friendship between Eng- land, France and Spain, signed at Paris in the year just men- tioned, changed the ownership of this territory. That trea- ty extinguished, apparently forever, the dominion of France in North America, for what she did not cede to Great Bri- tain, she ceded to Spain, though in strict accuracy, western Louisiana, with the island of New Orleans, was transferred to Spain by a secret convention, signed at Paris in Novem- ber '62, the day the preliminaries of the definitive treaty were signed. This was done by France to remunerate Spain for parting with Florida to England. The treaty of '63 made Great Britain mistress of all the North American continent to the east of tlie Mississippi, with the exception of the island of New Orleans. It is, also, important to bear in mind, that it changed the boundaries, as well as the own- ership of Louisiana, se^)arating the eastern portion from the great mass, and transferring it to England. That govern- ment immediately united that portion of Louisiana with Flo- rida, formed two territories, separated by the river Apala- chicola, and called them East and West Florida. The cir- cumstance of this transfer, and the separation of the territory into two districts (for before the treaty of 'G3, neither Eaot nor West Florida was known in geography), became the ori- gin of the controvers,^ betw^een Spain and the United States, respecting the boui-Jaries of Louisiana. The opposition of Spain was influenced by her unwillingness to abandon Lou- isiana, and by irritation at the President's proclamation of November ISOl, erecting the territories and the waters of the Mobile into a collection district, declaring thern to be within the boundaries of the United States, and establishing 264 TREATY OF '95 WITH SPAIN. a custom house there. — We have said,* in another place, that the transfer of Louisiana to the United States, was made in 1803. It was described in the manner following ; the words, we are under the necessity of repeating here, though quoted under the head of France, title Louisiana, are taken from the secret treaty of St. Ildefonso, of 1800. " His Ca- tholic Majesty promises and engages on his part to rerocede to the French republic, the colony or province of Louisiana, with the same extent it now has in the hands ofSpain^ and that it had, when France possessed it, and such aait should 6e, after the treaties subsequently entered into between Spain and other states^ This language is apparently ambiguous, and can only be understood by attending carefully to the history of the various cessions. As a justification for withholding the country between the Iberville and the lakes and the Per- dido, Spain contended that France could only convey to the United States the rights she had acquired from Spain, and by the treaty of 1800 Spain retroceded to France what she (Spain) had received from France in '62, that is to say, a territory bounded on the east by the rivers Mississippi and Iberville, and the lakes Maurepas and Pontchartrain. But of the territory eastward of this line, called afterwards by the English West Florida, and ceded the same day by France to England, Spain never received the least portion. She never owned a square mile of this territory, either before or after the treaty of '63. Spain could, therefore, never give back or retrocede to France, a district, she had never owned. This word, retrocede, was interpreted by the Spanish minister with strictness. The treaty, itself, being called a treaty of retrocession, the whole movement and action of the instrument depended on that word ; and it would be no compliment to the parties to that act to attri- bute to them the use of a vague, unmeaning term. The treaty of 1800 must, therefore, be considered entirely in reference to the word, retrocession. Spain, said D. Pedro *■ Chapter ix. Cession of Louisiana. ^ . f TREATY OP '95 WITH SPAIN. 265 Cevallos,^ possesses Florida as Florida. She received that district from England in '83. " His Britannic majesty cedes and guaranties to his Catholic Majesty, eastern and western Florida." (art. 5th.) When France *^ possessed" it, there- fore, and when she delivered it to Spain, it had the same extent as when in the " hands of Spain" at the time of the " retrocession." France made a complete cession to Eng- land. The territory, after '63, was in all respects English, but after '83 it became equally Spanish. These two acts are, in themselves, entirely distinct, and have no reference to any former boundaries of Louisiana. A new territory was erected in the hands of a new government, and called Florida. From that period we lose sight of the original eastern boundary of Louisiana. Two territories cannot be made to mean the same territory, nor can they be legally incorporated in the same instrument by the same name that are acquired at different times, by different names, and from different parties, unless a special reference is made to these circumstances. Spain received Louisiana from France in '63, and Florida from England in '83. The title of Spain to Florida is entirely independent of France. Another very great difficulty, in the opinion of Spain, presented itself in this view. Since '63, all the country south of the 32d degree of latitude and east of the Iberville, has been called Florida. But before the treaty of that year, the limits of the French possessions extended on the north from the Mis- sissippi to the Ohio and Illinois rivers. It is, therefore, quite as correct to call that country about those rivers Lou- isiana, as it is the country about the Mobile. The style of East and West Florida has been recognised in a variety of public documents, more especially the treaties between Spain and England in '83, and Spain and the United States in '95. Part of the title of the governor of the Havana is, captain- general of " the Floridas.^^ That country is also called, on * This is the same minis^lor, that aecoinpanied Ferdinand VII. to Bayonne in 1808. Seo Expoacs of D. Juan Escoiqiiiz and D. Tcdro Ccvallos. . • .' VOL. 1. 34 !36G TREATY OF '95 WITH SPAIN. the maps, East and West Florida. It is therefore evident that this appellation, West Florida, was known, not only in diplomacy, but also in geography, and that when it was men- tioned in any oinciul public instruments, either treaties, comniise'iotis, or pioclamations, it was always denominated West Florida, and not Louisiana, or any portion of Louisiana. If, therefore, in the treaty of 1800, it had been the inten- tion of the parties to include this district, it would have been specifically named. No uncertainty need to have existed, because the boundaries were perfectly run, and the name every where known. If it had been the intention of the parties to include West Florida, they would have used the words West Florida, and not employed a phrase so exceed- ingly vague and ambiguous. If the United States were about to cede the state of Ohio, or Illinois, which at one time belonged to France, and then to England, and was then known by different names, she would not have gone back to the times, when France or England owned the country. She would simply have described the cession under the ap- pellation of the state of Ohio, or Illinois. The simplest and most intelligible language is always employed on such occa- sions. It would have been absurd to have called it Louisia- na, because it had once formed a part of that province. — With the same propriety we might call Ohio, Louisiana. It is, also, absurd to deliver the territory with the same and yet more extent, — same extent as when France possessed it in '63, and same extent that it noio has in the hands of Spain, — if more, obviously, it is not the same. The phrase, "2i;Aen France possessed it" not indicating a fixed time, for Fraii?;e possessed it under two very different conditions, should be determined by the clauses of the treaty ; and not be so interpreted as to make those clauses inconsistent. If that expression refers to a period anterior to '63, it is quite evident, Spain could not comply with the provisions of the treaty, for a large part of Louisiana, as it was before the cession to England in '63,, is now Kentucky, and other por- tions of the United States. It is not to be supposed, that the parties, having a full knowledge of the subject, should TREATY or '96 WITH SPAIN. 2C7 have made a treaty, the provisions of which are at variance, and which one of the governments could not execute. It is certainly much more reasonable to construe the treaty in such a manner, as that one of the parties should have been able to comply with its provisions, and make the cession proposed. This interpretation Spain, one of the parties, puts on the treaty ; — the other party, France, confirms this interpretation. In August 1804, the minister of foreign relations, M. dc Talleyrand, delivered the following opinion on the subject : " The eastern limils of Louisiana are indicated by the course of the Mississippi and the Iberville, the lakes Pontchartrain, and the Maurepns. It is at this line, that terminates the territory ceded by Spain to France. France liad nothing to demand of Spain be- yond this limit, and as she has now transferred to the United States (he right she thus acquired, they cannot require of Spain a cession of territory more extensive." On the last clause of the cession, ^< such as it should be after the treaties subsequently entered into between Spain and other states" the Spanish government contended, that there were but two treaties to which this language could apply ; that of '83 between Spain and England, and of '95 between Spain and the United States. The treaty of '83 gave his Catholic Majesty the territory of West Florida. This ter- ritory, acquired by a different name, twenty years after the original cession of Louisiana, could, by no process whatever, be incorporated with the latter named province. It was an addition, generally, to the possessions of Spain, but it could never be considered a special one to the province of Louisia- na. If the United States should cede Ohio to Spain, it would be an extravagant liberality of construction, to call it immediately part again of its original province. Louisiana itself was dismembered, it had been withdrawn from the government of its original proprietor, different portions of it had belonged to different states for a long period of time, had acquired new names, and had boundaries exactly defin- ed. It is certainly the first example of the kind, that the k>5 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 Li|28 mm m m "« 140 lu Kii u L25 i 1.4 I 2.0 1.6 -► 0% <% V] A^'^«> /^ //> y Hiotographic Sciences Corporation 33 WIST MAIN STRIET WEBSTER, N.Y. 14SS0 (716)872-4503 ^^A. ^ ^ V 268 TREATY OF '95 WITH SPAIN. simple act of a fresh cession should cause all these names and boundaries to disappear. The party, acquiring the pos- sessions, may cause them to disappear, and incorporate the whole again into one territory. But Spain could not recog- nise aright of this description in a party to a second con- tract, in direct opposition to the opinion of the parties to the first original instrument, and to her very great cost and serious damage, where not a single direct stipulation could be produced to authorize a proceeding so violent. The treaty of '95, between Spain and the United States, principally related to the boundaries of Louisiana and Florida. So far, therefore, as it has any bearing on the subject, it excludes West Florida from the reach of the treaty of St. Ildefonso. The reader will observe, that the entire success of the rea- soning, by which Spain supported her pretensions to this ter- ritory, depends upon the single point, what period is indicated by the possession of France. That is, after all, the clause in the cession, that ought to determine the boundaries. The American government contended, that this period was one an- terior to the year '63, for France divested herself of both por- tions of Louisiana on the same day. The east she ceded to England, and the west to Spain. When France, therefore, possessed Louisiana, it was an entire province. She never possessed it as Spain has since done. France could not cede an exact boundary to the United States, because that had not been agreed on in the treaty of St. Ildefonso. The treaties of '63, and '83, and '95, had changed exceedingly the limits of Louisiana ; and the only legitimate mode of making an undisputed cession, was not to include, or exclude any territory specifically. In the transfer to America, the original article of the treaty of St. Ildefonso is employed ; and, though that treaty is called a treaty of retrocession, the word is of no other importance, than as it expressed the act of the treaty better than any other term could do. Besides, France once possessed Louisiana, and a cession to her by any power of that territory would be a retrocession. The single general action of this instrument concerns that prov- ince. France was the first European state that owned it, names le pqs- ite the recog- id con- I to the >st and n could e treaty ncipally So far, xcludes lefonso. the rea- this ter- idicated iause in ;. The one an- oth por- seded to lerefore, e never lot cede hat had The jedingly node of exclude rica, the [ployed ; iion. the the act esides, by The |at prov- ned it, TREATY OF '95 WITH SPAIN. 269 her and it once held as much of the province as any other power has since held. Whatever, therefore, was ceded to France, whether a large or a small portion, must have been a retro- cession. Still, this word is of little importance, because three distinct phrases, or specifications, are introduced to define the extent of the cession. We shall very briefly state the substance of the reasoning on these three points. 1st. ** The colony or province of Louisiana, with the same ex- tent it now has in the hands of Spain." This is a very easy matter to determine. We have, simply, to enquire what portion of Louisiana was in the hands of Spain when the treaty of St. Ildefonso was made. All Louisiana, to the eastward of the Mississippi, from the 31st degree of north latitude to the northern limits of the United States, had been ceded by France to Great Britain, by the treaty of '63, to which Spain was a party. It is the ?th article, and is in these words : — -<< His most Christian Majesty cedes and guaranties to his Britannic majesty the river and port of Mobile, and all the territory he possesses on the left bank of the Mississippi, with the exception of the city and island of New Orleans." (Martens.) This same territory, to the north of the 31st degree, was confirmed, (art. 2,) to the United States, by Great Britain, by the definitive treaty of peace and amity. Again, this territory was further confirm- ed to the United States, by the treaty of alliance of '78, (art. 6,) and by the 2d and 4th articles of the treaty of friendship, limits and navigation, of '95, between Spain and the United States. It is evident, therefore, that this speci- fication does not touch a square mile, for not a square mile of it was in the hands of Spain in 1800. 2d. " The same extent that it had when France possessed it.^^ This was in the year '63, or anterior to that period. That is to say, all France then possessed, and which had not been subse- quently ceded to other powers, according to the exception of the first specification ; otherwise, this clause would have included all that Spain had ever owned, which neither France nor Spain obviously could cede, for it belonged to a third power. A reference to its state, anterior to '63, ne- 270 TRS&TY OT '95 WITH SPAIIT. i u^i cessarily excluded all subsequent modifications of tbe territo- ry, in consequence of new names having been given to any part of it ; for a part of Louisiana remained in the hands of Spain, under a new denomination. Great Britain called that portion, ceded by the treaty of '63, West Florida, and Spain might have called some part adjoining Mexico by some other name. Therefore, to avoid embarrassment proceeding from a change of names, a period was taken when those names did not exist. It follows from this second clause or specification, that no part of the province then in the hands of Spain, ever possessed by France, should be excluded. 8d. << Such as it should be after the treaties, subsequently entered into between Spain and other States." The treaty of '83, ceded West Florida to Spain. This, therefore, she did not acquire of France. But this portion falls within the first specification, because it is now in the hands of Spain, and within the second specification, because France once possessed it. If Spain, instead of receiving, had ceded West Florida, anterior to the treaty of St. Ildefonso, this third specification would have expressly excluded it. A treaty that enlarged the extent of the province could not di- minish the extent of the cession. The treaty of '95 with the United States excluded whatever was to the north of the 31st degree and to the east of the Mississippi. That treaty, therefore, brought nothing within the reach of this 3d clause. As the claim of the United States to this territory, in it- self of great importance, was undoubted, we have given the course of argument in considerable detail ; and, though Spain never presented any satisfactory answer or explanation, she refused to deliver the country. The conduct of France, on this occasion, was unfriendly in the extreme. She openly adopted and defended the opinions of Spain ; and condemned the proceedings of the American government, in an un- reserved and gratuitous manner. We extract a single passage from a letter of M. de Talleyrand, of December 1804 : 1 « This result his Imperial Majesty will learn with real interest. THIATY OP *95 WITH SPATIT. 271 errito- to any nds of called la, and J some seeding [ those luse or e hands deluded. .quently I treaty are, she thin the r Spain, ice once i ceded nso, this 1 it. A d not di- '96 with north of That of this •V, in it- [iven the gh Spain tion, she ance, on 5 openly tdemned an un- a single lecember interest. He saw with pain the United States commence their differences with Spain in an unusual manner, and conduct themselves towards the Floridas by acts of violence, which, not being founded in right, could have no other effect but to injure its lawful owners. Such an aggression gave the more surprise to his majesty, because the United States seemed, in this measure, to avail themselves of their treaty with France, as an authority for their proceeding, and be- cause he could scarcely reconcile with the just opinion which he entertains of the wisdom and tidelity of the federal government, a course of proceeding, which nothing can authorize towards a pow- er, which has long occupied, and still occupies, one of the first ranks in Europe." The United States had, therefore, the whole influence and authority of France against her in this business ; for, from the treaty of Basle to the year 1808, Spain was the steady, faithful, and most useful ally of that power. -'. Although not entirely in course, we shall here conclude the account of the eastern boundary of Louisiana. The ne- gotiations on the subject ceased in 1805 ; Spain prepared to defend the possession of it, — and, undoubtedly, an attempt to occupy it, on the part of the United States, would have led to a war. The territory was of great importance to the Americans, particularly on account of the waters of the Mo- bile, the principal rivers of Alabama emptying themselves in- to this bay, which is the natural outlet of an exceeding fer- tile country of great extent. Before the cession of Louisia- na, the United States had attempted to buy the territory on the Mobile, of Spain. They claimed, also, for the citizens residing on the Torobigbee and Alabama rivers, its free na- vigation to the ocean, as a natural right, and as secured by the general principles of the laws of nations in similar cases. This privilege, however, was not obtained ; for the Spanish authorities on the Mobile continued to levy, from time to time, a duty of 12^ per cent, on merchandise that passed through, for or from the upper country. We have already said, that, in 1804, a collection district, under the usual cus- tom house laws, was established on (he Mobile. The Span- iards complained of this act, as a violation of their territory 272 TREATY OF '95 WITH SPAIN. I 'i and sovereignty. But the American government attempted to exercise no further jurisdiction over the territory, till the year 1810, when the juncture of affairs in Europe made it Extremely imprudent to suffer iheir right to West Florida to remain longer in suspense. In the year 1807, after the treaty of Tilsit, the emperor Napoleon began the overthrow of the Bourbon dynasty in Spain, by attacking Portugal. The progress of this business is well known. At last, in 1810, Charles IV. and Ferdi- nand VII. being dethroned, the supreme junta of the Cortes driven to the isle of Leon and dissolved, and the English and Portuguese armies appearing to be besieged, as it were, in the celebrated lines of Torres Vedras, nearly at the ex- tremity of the peninsula on the west, there was every rea- son to suppose, that the unprincipled project of the French emperor had succeeded ; and that the ancient monarchy of Spain and the Indies, upon whose possessions, in the ex- pressive language of an author of that country, the sun never set, was completely annihilated. The Spanish authorities in West Florida were, by this revolution, and by the treaties signed by Charles and Ferdinand, released from all obedi- ence to the former Spanish government. West Florida, it- self, was divided into two parties ; one, under the influence of governor Folch, attached to the mother country ; the other, said to be the most numerous, directed by colonel Kemper, was desirous of a union with the United States. The latter portion of the people held a convention at Baton Rouge, in the summer of 1810, and addressed a letter to the secretary of state, soliciting to be received under the protection of this country, and to have the privileges en- joyed, under the constitution, by other citizens of the con- federacy. They published a proclamation at the same time, somewhat at variance with the claims of the American gov- ernment on that territory. In Eur>jpe, France in full exer- cise of all the powers and prerogatives of the ancient Span- ish throne, having originally opposed the claim of the United States to West Florida, would undoubtedly endeavour, as soon as possible, to get possession of it. In this hemisphere. -TREATY OF *95 WITH SPAIN. 273 empted till the niade it [orida to emperor nasty in business I Ferdi- 3 Cortes English it were, the ex- rery rca- j French archy of the ex- lun never lorities in s treaties II obedi- orida, it- influence try ; the colonel States, at Baton letter to nder the eges en- the con- |me time, ican gov- fuU exer- nt Span- e United ivour, as lisphere, the Spanish colonies, with some exceptions, were, them- selves, exceedingly agitated with a spirit of revolt, and sev- eral had declared themselves independent. A similar state of things appeared to exist in West Florida. The Ameri- can government had already forborne, for a long time, to en- ter upon the enjoyment of its undoubted rights, in regard to this territory ; but circumstances made it extremely danger- ous longer to rely upon the success of this system. Orders were, therefore, sent to Wm. C. C. Claiborne, in the au- tumn of 1810, to take possession of the country, in the name of the United States, and to incorporate it, for the time, with the Orleans territory ; — measures, that were ef- fected without bloodshed. The motives of this step will be found in the proclamation, issued by the President on that occasion, though it is the first time the United States had been compelled to employ force to obtain possession of their own country. Those parts of the states of Alabama and Mississippi, that border on the gulf of Mexico, are composed of the ancient territory of West Florida. This part of the account of the relations with Spain would be quite imperfect without an examination of the western boundary of I^ouisiana. Though this was finally settled at a later period than the one, now under consideration, it proper- ly belongs to the act, constituting in 1803 a transfer of that province, more especially as the negotiations, respecting this boundary, were originally carried on at Madrid in 1804 and 5 by Messrs. Monroe and Pinkney, at the same time with that relating to the other frontier. This is not a subject sus- ceptible of much discussion ; for the right of the United States depends upon a few plain facts, perfectly substantiated, though the topic, like every other with the court of Spain, has led to a protracted and minute correspondence. The Sieurs Joliet and Marquette from Canada, penetrated, as early as 1673, down the Mississippi to the Arkansas. Father Hennequin in 1G80, La Salle and Tonti in 1682, descended to the ocean, and named the country Louisiana, placing it by the most solemn acts under the government of France, and by making settlements, and erecting works for VOL. I. 35 . , ' * 274 TREATY OF '95 WITH SPAIN. their protection. In 1685, La Salle landed with 240 per- sons in the bay St. Bernard from France, and built two forts there Louis XIV., by letters patent in 1712, granted the commerce of the country to Anthony Crozat, defining its boundaries as all the land, coasts and islands, situated in the Gulf of Mexico, between Carolina on the east, and New and Old Mexico on the west, with all the streams that empty into the ocean within those limits, and the interior country dependent on the same. We mention these few detached facts, in an abridged form, to show that France first discover- ed Louisiana, and, according to the whole European prac- tice, came into the rightful possession of it : ** The principles, which are applicable to the case, are such as are dictated by reason, and have been adopted in practice by Eu- ropean powers in the discoveries and acquisitions, which they have respectively made in the ne*v world. They are few, simple, intelligible, and, at the same time, founded in strict justice. The first of these is, that when any European nation takes possession of any extent of sea coast, that possession is understood, as extend- ing into the interior country, to the sources of the rivers, emptying within that coast, to all their branches, and the country they cover, and to give it a right in exclusion of all other nations to the same. H is evident that some rule or principle muPt govern the rights of European powers in regard to each other in all such cases, and it is certain, that none can he adopted in those, to which it applies, more reasonable or just than the present one. Many weighty considerations show the propriety of it. Nature seems to have destined a range of territory so described, for the same society, to have connected its several parts together by the ties of a common interest and to have detached Iheni from others. If this principle is departed from, it must be, by attaching to such discovery and possession, a more enlarged or contracted scope of acquisition, but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of an European power, who discovered and took possession of a new country, to the spot on which its troops or settlements rested, a doctrine, which . has been totally disclaimed by all the powers, who made discove- ries, and acquired possessions in America. The other extreme TREATY or '95 WITH SPAIN. 275 per- 'o forts ' :ed the ing its in the 3W and empty jountry ;tached scover- n prac- such as J by Ea- ch they , simple, D. The }sscssioa i extend- !mpt>'ing »y cover, be same, rights of \ses, and npplics, weighty to have ciety, to common trinciple rery and tion, but rdily of uropean ^, to the , which discove- extrcme wouhl be equally improper, that i«, that the nation who made such discovery, should, in all cases, be entitled to the whole of the ter- ritory 80 discovered. In the case of un island, whose extent was seen, which might be soon sailed round, and preserved by a few forts, it may apply with justice, but in that ofa continent, it would be absolutely absurd. The great continent of America, North and South, was never claimed or hold by any one European nation, nor was either great section of it. Their pretensions have been always bounded by more moderate and rational j)rinclplcs. The one laid down has obtained general assent. This principle was completely established in the controversy which produced the war of 1755. Great Britain contended that she had a right, found- ed on the discovery and possession of such territory, to deiine its boundaries by given latitudes in grants to individuals, retaining the sovereignty to herself, from sea to sea. This pretension, on her part, was opposed by France and Spain, and it was finally aban- doned by Great Britain in the treaty of 17G3, which established the Mississippi as the western boundary of her possessions. The second is, that whenever one European nation makes a discovery and takes possession of any portion of that continent, and another afterwards does the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, the middle distance becomes such of course. A third rule is, that whenever any European nation has thus acquired a right to any portion of territory on that continent, that right can never be diminished or alTectcd by any other power, by virtue of purchases made by grants or conquests of the natives within the limits thereof. It is believed that this principle has been admitted and acted on invariably since the discovery of America, in "" ;;*ect to their possessions there by all the European powers. It ii par- ticularly illustrated by the stipulations of their most important treaties concerning those possessions, and the practice under them^ viz.: the treaty of Utrecht in 1713, and that of Paris, 1763. la conformity with the lOlh article of the first mentioned treaty, the boundary between Canada and Louisiana on the one side, and the Hudson Bay and North Western companies on the other, was established by commissaries by a line to commence at a cape or promontory on the ocean in fifty-eight degrees, thirty minutes north latitude, to run thence southwestwardly to latitude forty-nine de- 276 TREATY OF '95 WITH SPAIN. mm grees north from the equator, and along that line indefinitely west- ward. Since that time no attempt has been made to extend the limits of Louisiana, or Canada, to the north of that line, or of those companies to the south of it, by purchase, conquest, or grants from the Indians. By the treaty of Paris, 1763, the boundary between the present United States and Florida, and I^ouisiana, was estab- lished by a line to run through the middle of the Mississippi, from its source to the river Iberville, and through that river, iic. to the ocean. Since that time no attempts have bocn made by those states, since their independence, or by Great Britain before it, to extend their possessions westward of that line, or of Spain to extend Ijer's eastward of it, by virtue of such acquisitions made of the Indians. These facts prove incontestably, that this principle is not only just in itself, but that it has been invariably observed by all the powers holding possessions in America in ail questions to which it applies relative to those possessions. On the authority of the principle tirst above stated, it is evident that, by the discovery and possession of the Mississippi in its whole length and the coast adjoining it, the United States are entitled to the whole country dependent on that river, the waters which empty into it, and their several branches within the limits on that coast. The extent to which this would go, it is not now possible to say, but the principle being clear, dependent on plain and simple facts, it would be easy to ascertain it. It is equally evident, by the application of the second principle to the discovery made by M. de la Salle of the Bay of St. Bernard, and his establishment there on the western side of the river Colo- rado, that the United States have a just right to a boundary founded on the middle distance between that point and the then nearest Spanish settlement, which it is understood, was in the province of Panuco, unless that claim should be precluded on the principle first above mentioned. To what point that would carry us, it is equally out of our power to say, nor is it material, as the possession in the bay of St. Bernard, taken in connexion with that on the Mississippi, has been always understood, as of right it ought, to extend to the Rio Bravo on which we now insist." It is now proper to return to the other parts of the nego- tiation, undertaken in 1805 by Messrs. Monroe and Pinkney at Madrid. With Mr. Pinkney (Charles) of South Carolina, appointed a plenipotentiary in June 1801, the resident min- TREATY OF '95 WITH SPAIN. 277 ister, was joined, in a special and extraordinary mission, Mr. Monroe, minister at the court of St. James. The cxumina- tion of the points in dispute between the two countries began in January 1805. We have already spoken of the bounda- ries of Louisiana. The other topics related to illegal cap- tures, and the suspension of the right of deposite at New Orleans. Spain, never having denied the propriety of mak- ing indemnity for illegal captures by bona fide Spanish pri- vateers, this business had been arranged in the conveiilion of 1802, an instrument that country suddenly refused to ra- tify,* though made uiuler the eyes of the court, because Louisiana had been ceded to the United States.] The ille- gal captures were those made by French privateers, either within Spanish jurisdiction, or condemned in the Spanish ports before the month of September 1800, by French con- suls. The United States claimed indemnity for these spoli- ations from Spain. But the claim was rejected ; the Span- ish government contending that the convention of 1800, be- tween France and the United States, released them from any obligation to pay ; and by a supplementary article to that instrument, the American government agreed to make no demand on France for captures or spoliation ; an exemption conceded by America, in consideration of being exonerated from the weighty obligation, imposed by the treaty of '78, involving the guaranty of the French possessions. On that * This convention was fully ratified by this government in Decem- ber 1818. . , 1^^ t The Senate ratifled this convention in 1804 ; but it was annulled by the convention of 1819. We take this opportunity to say that the first minister plenipotentiary, sent by Spain to this country, was the chevalier Carlos Martinez dc Yrujo ; he arrived after the treaty of '95, and his commission was renewed in 1801, when he Avas created or became a marquis, lie is su])posed to have been the author of a paper, signed Verus, addressed to the native American, and published in the Aurora towards the close of the year '97. He was the last Spanish minister in America, before the renewal of the diplomatic in- tercourse on the restoration of the royal family. David Humphreys, of Connecticut, was appointed a minister plenipotentiary to Madrid, in May '96. 278 TRKATY OF *96 WITH SPAIN. 4 occasion, the United States avowed themselves satisfied on the subject of spoliations. Now, if a nation, in a treaty, declares herself satisfied for a claim against another party, she obvi- ously can have no further demand against that party. This is a principle founded in the roost obvious and simplest rules of justice, and not, at all, created or affected by municipal law. This was, in substance, the reply of Spain, a defence that would not admit of an answer, if the facts, assumed by that governmcn.t, were correct. But tho fact is, the con- vention of l&OO rclcuscd only France from indemnity ;— > there is no reference in it to a third party. The American government did not make a demand on the French for a wrong, committed by any one of their allies. But, in sup- port of her argument, Spain presented the following view of the case. From the year '95 to the treaty of Amiens, France and Spain were allies, and at war with England ; — France aimed privateers in Spanish ports to cruise against English vessels ; — this was lawful ; but the violations she committed on neutrals out of the jurisdiction of Spain, by means of these same privateers, were beyond the control of Spain ; — they were not acts done in Spanish waters, nor by Spanish officers or tribunals. As a proof of this, the French tribunals decided that the captured vessels should be con- demned ; — the court of cassation at Paris was full of appeals from the Americans interested, supported by the agents of that country ; — the American merchants themselves, there- fore, considered the French responsible, for they appealed to the courts of that government for redress. But, on the other hand it was said, that Spain preserved the attitude of an independent nation till the overthrow of the Bourbon dynasty in 1808, and it would have been highly indecorous in the American government to have intimated that she was not able to maintain her sovereignty within her own acknow- ledged jurisdiction, as Spain never assumed this defence. Foreign governments would have been little justified in gra- tuitously presenting it to consideration, or for abstaining on that ground from making perfectly legitimate demands. She possessed every external attribute of a sovereign, independ- TREATY or *95 WITH SPAIlf. 270 3 on the declares ie obvi- . This !st rules lunicipal defence imed by he con- nity ;-— .merican h for a , in sup- view of Amiens, ;Iand ; — i against ions she pain, by ontrol of }, nor by 5 French be con- ' appeals igents of , there- ippealed , on the itude of ourbon lecorous I she was tcknow- lefence. in gra- ining on Is. She lepend- ent nation ; — she had made an honourable and separate peace with Great Britain in 1801, and was not, at any one period, in the condition of a vassal state, or conquered coun- try. M. de Talleyrand, again, came to the aid of the Span- ish minister, if not with arguments, at least with opinions unfavourable to the United States. Wc quote from a letter written by him in July 1801, to admiral Travina, ambassa- dor of his Catholic Majesty at Paris : " Uespecting the second point in dispute (indemnities), wliicli your excellency docs me the lionour (o sjiciilc of in your note, 1 must sny that I had previously no linowlcdije of it. And, indeed, if I had been informed that his Catliolic Mnjosty's ministers had carried their condescension for the government of the United States so far, as to engage tlicmselvcs towards it lor indemnifying viola- tions, pretended to have been committed hy I-'rance, I should cer- tainly have received onlers from my government to express the dissatisfaction which I'^rance mii^fl feel on the occasion of so un- seemly a deference, and this dissatisfaction woidd have been ex- pressed stiH more warmly to tlie government of the United Slates than to that of Spain. There is every reason to suppose, tliat the court of Spain, hy thus yiohling to an improper demand, has em- boldened tiie American government, and determined it to become pressing and even menacing on tiiis occasion. As for the rest, the explanations formerly given to your court on this point, as well as those, which have been authorized to be given to the government of the United States by the charge d'alTaires of liii Ini|>erial Majes- ty, must enable you to judge of tlic opinion formed hy his Majesty on this question, which, having already been tlic subject of a long negotiation, and of a lormal convention betweon France and the United States, cannot again become a subject of discussion." , ^. It will immediately occur, that the opinion of a French minister of foreign relations is not entitled to much conside- ration, for France was a party deeply interested. The spoils of the confiscated property had been put in her treasury, and of all exemptions or immunities Spain might obtain, France would enjoy the only and full benefit. It is, also, evident, that in regard to these claims Spain was not a party to the convention, and could, therefore, derive no advantage 280 TREATY or '95 WITH SPAIN. from it. As Spain never pretended that the claim on her for spoliations, committed by her own privateers, was dis- charged by that convention, we are not aware that she could be justified in expecting an exemption, under the same in- strument, (dr spoliations by French subjects within her limits. Spain asserts that these acts were committed by foreigners, but they were not committed by stealth, nor were they acts of such sudden, unlooked for violence, that the Spanish au- tiiorities had neither time nor the means to interfere. On the contrary, many of the vessels were taken lying in Span- ish ports, and all of them carried before French consuls, and condemned in public day. If the acts had been done, as Spain asserted, without her jurisdiction, there would have been no pretence for a claim on her. It is, moreover, the duty of government to see that all foreigners in their inter- course with it are protected in the enjoyment ol those rights, to which they are entitled by the laws of nations ; and it is a rule as well established, that every state should be respon- sible for wrongs, committed within its limits by aliens on other aliens. This rule is founded on the plain consider^ lion, that every government is supposed sovereign within i i own limits, while it remains independent. Spain, in thi particular case, was additionally bound by the special pro- visions of the treaty of '95 to protect American property. France committed the spoliations within the jurisdiction of Spain, and it is immaterial whether France waj eventually liable. The injury was done in Spain ; Spanish laws werf violated ; Spain had cognizance of the case, and her govern ment permitted the wrong; reparation was, therefore, due from her. It is true, the convention of 1800 released France from the claims, if she was eventually answerable for them ; but application had already been made to Spain, and her demand would always be good against France. No na- tion can undertake to adjust the concerns of another without its authority, and no release given by one party can affect a third. France could not have made a convention to compel iiftii. TREATY or '96 WITH SPAIN. 281 on her vas dis- ,e could ame in- r limits, eigners, ley acts nish au- re. On n Span- luls, and done, as lid have ver, the ir inter- e rights, and it is I respon- iliens on )nsiden k'ithin i i p, in thi cial pro- >roperty. iction of entuallj rs werf Tovern e, due released rable for iin, and No na- Avithout affect a conapel Spain to pay for all those demands ; by a similarity of rea- soning she could not release her from them.* >iu^ o^?.Hii.: Spain refused at the time io do any thing on the subject of the claims for spoliations. Closely allied wilh France, then exceedingly powerful, her government did not apprehend the fate with which they were threatened. But she was morti- fied, depressed and irritated by an unfortunate bargain with the Emperor Napoleon respecting Louisiana ; — by an accu- mulating and protracted, angry correspondence with the Unit- ed States, and by frequent and alarming quarrels and outra- ges on her frontiers, particularly in regard to the Indians. Most of her concerns with the American government had taken an unfortunate turn, and almost every topic had led, not only to tedious, but to irritating discussions. Spain probably felt, moreover, that she was growing weak. Los- ing her influence in Europe, and her colonies in America, she naturally parted with every thing with extreme reluctance, well knowing she would never be able to regain her posses- sions. Her government exhibited the habits of a decaying, perishing state. This arose partly from the modes of doing business, always customary in that country, and partly from the indecision and negligence, which unhappily as well as in- variably accompany debility. The United States have never yet come to an open rupture with Spain ; but there is no nation in f^urope, with whom the relations of the American government have been so unsatisfactory. We have but one more topic to examine before we arrive at the final termination of the mission of Messrs. Monroe and Pinkney. This related to the right of deposite at New Orleans, suddenly suspended in October 1802, by the inten- dant of Louisiana. Undoubtedly, a gross violation of the 22d article of the treaty of '95 ; or at the least it was an *■ This claim has since been adjustctl by the act, tniiisferiiiig r'n-st Florida to the United States; on that account uc liave very briefly touched upon the history and jjrinciple of tlicso claini*!, tliongh they rest on the same considerations, as those against otlior Enrojtcan governments. VOL. I. 36 2S2 TREATY OF '95 WITH SPAIN. , unfriendly act to suspend the deposite without notice, the article obviously requiring that another place should be point- ed out on the Mississippi for the same purpose. This was not done. The act was disavowed by the king, and the right renewed; but the purchase of Louisiana in 1803, removed all the difficulties attending this transaction. The actual injury done to the navigation on the Mississippi was consid- erable, and a reparation for this was included in the instruc- tions of the commissioners. This mission terminated in the beginning of 1 805 ; Mr. Monroe having returned to Lon- don, Mr. Pinkney was succeeded by James Bowdoin, of Massachusetts, appointed minister plenipotentiary, who re- mained till 1807. The United States had no minister in Spain during the troubles in that country. The intercourse was renewed again in 1814, by the appointment of George W. Erving, of Massachusetts, a minister plenipotentiary. l'«*^J^*« ( 283 ) ^I?*V.« . tM i'mivf'i'i' fe-^' -f^i/'t ,'■ V^ fV^ti-rM CHAPTER YIII. CONVENTION OP 1800 WITH FRANCE. Jefferson elected again to France — Jefferson'^s Utters on French Revolu- tion — Permission to return — Jay''s letter on Federal Government— .. De la Luzerne is succeeded by De Moustier — Morris succeeds Jeffer- son and Teman de Moustier — Washington's illness — French Revo- lution embarrassing to Government — Perplexing question whether ,, a Minister should be received from the French Republic — M. Genet- Death of the King — Excellent remark of Morris — Less enthusia^n for the Revolution — Proclamation on neutrality — Remarks on that subject — Very difficult negotiation with Genet — His demands exam- ined — Monroe goes to France — Government solicit the recall of Genet — His unsuitable language — Dismissed — Is succeeded by Fau- chet — More temperate — Met succeeds Fauehet — Outrage on Fau- ■ chct — France extremely dissatisfied with state of things — Monroe opposed to administration — Want of instructions — Jay's treaty — Pinckney succeeds Monroe — Not received by the Directory— Order- ed to leave France — Extraordinai-y proceeding — Pinckney, Marshall and Gerry appointed — JVot received, though cards of hospitality sent them — Instructions — W. Y. Z. — Talleyrand proposes to treat with one Commissioner only — Rejected — Pinckney and Marshall leave France — Talleyrand's account of negotiation — Gerry remains — Origin of parties — Hostilities — Talleyrand brings on, by means of Pichon, another negotiation — Ellsworth, Murray and Davie ap- pointed to France — Properly received — First Consul — Account of tiegotiation-T'Conveniion — Bonaparte desirous of peace — French government poor — Convention hastily made. In October 1787, Mr. Jefferson was again elected minister to France for three years. He arrived in that country soon after his first appointment, and was presented to the king on the 17th of May 1785, by M. de Vergennes, who still con- tinued the principal minister of state. The period of Mr. 284 CONVENTION OF 1800 WITH FRANCE. Jefferson's residence at Ihe Court of Versailles was uncom- monly important and interesting, but for reasons and con- siderations, that have little direct connexion with this coun- try. His letters relate principally to the state of France, and towards the close of his mission, contain minute accounts of the events that daily took place under his eyes. In speak- ing of the assembly of notables, where the first symptoms of disaffection were disclosed, Mr. Jefferson appears to think that the reforms in the ancient monarchy would be only par- tial, and even to them he alludes with some degree of doubt. We have no recollection of observing, in any part of the correspondence we have had an opportunity of examining, an intimation of the dreadful consummation of this revolu- tion, nor any expressions but those of a favourable kind in regard to the king. But as this great work proceeded, some change naturally took place in his opinions, principally con- cerning the reformation that would be worked in the govern- ment. It is apparent from the two short extracts we are about to introduce, that his sentiments on the subject of the French Revolution did not materially differ from many other enlightened statesmen, both of this country and Great Britain. May '88. " There is neither head nor body in the na- tion to promise a successful opposition to 200,000 regular troops. Some think the army could not be depended on ; but the breaking men to military discipline is breaking their spirits to the principles of passive obedience. Whatever turn this crisis may take, a revolution in the government seems inevitable, unless foreign war intervene to suspend the present contest, and a foreign war the government will avoid if possible, from an inability to get money." January '89. " This country advances with a steady pace towards the establishment of a constitution, whereby the people will remove the great mass of those powers, so fatally lodged in the hands of the king." " The intrigues of the clergy and nobility will unite the people and the king." Great and constant complaints were made by M. de Ver- gennes and de Royneval, that the American trade had not incom- d con- ; coun- 'lance, ^counts oms of I think ily par- doubt, of the mining, revolu- kind in d, some Ily con- govern- we are bject of m many d Great the na- regular led on ; ig their hatever irnraent tend the [U avoid steady thereby rers, so itrigues king." le Ver- lad not t I CONTENTION OP 1800 WITH FRANCE. 285 found its way to their country, and notwithstanding the stipu- lations of the treaty of '78, still all centred in England. This was an extreme disappointment to France ; but com- merce does not readily follow in the channels, traced out for it on the parchment of diplomatists. France had nothing to give in exchange for our productions ; no inducements or advantages to otfer, that could break through the fixed com- mercial habits of two centuries, the convenience of similarity of laws, language, and general customs of trade. At this present hour, France appears to be drawing to her ports some portion of our active, enterprising commerce, but in point of amount how little in comparison with the trade, which continues to pour itself into the bosom of the mother country, and of what little value, compared with the articles of staple, necessary consumption, annually obtained from Great Uritain, notwithstanding that our own manufactures fol- low so close upon those of that wealthy, industrious people. When Mr. Jefferson was in France, there existed insuperable obstacles to a commercial convention, in the wasteful system of profligate farming, particularly as it respected tobacco. In October 1789, Mr. Jefferson returned to this country, having previously obtained the permission of the government. The official papers, relating to this change, we shall insert at length, on account of the interesting nature of their con- tents. ."W-' •>}iCf^- •»«- . ■•*.;» "Nevv-York, 19th June 1789. " I have at leng(h, my dear sir, the pleasure of informing you (though not officially) that yon have leave to return, and that Mr. Short is appointed to take charge of the public affairs during your absence. " From the time that your letter of the 19th November last was received, \\z. 10th February, to the time that our former govern- ment gave place to the present one, there was not a single day, on which so many States were represented in the late Congress, as were necessary to make a House. " Directly after the President came into ofhce, I communicated to him your request. It was the general opinion, that the appoint- ments under the late government expired at that period, and there- 286 COnVSNTION OF ISOO WITH FRANCE. fore that the heads of the different departments were not in capa- city to proceed without a new conveyance of authority. It waj expected, that the different officers would, without delay, be estab- lished, and the business of them put in train. These circumstances retarded a decision on your request. " Although the departments still remain in the same state, yet the President on the IGth instant informed the Senate, that he had complied with your request, and that he nominated Mr. Short on the 17th. 1 attended the Senate on the subject, and yesterday they came to a resolution in the following words, viz. ^ United States of America. In Senate, 18th June 1789. liesolvcd that the Presi- dent of the United States be informed, that the Senate advise and consent to his appointment of William Short, Esquire, to take charge of our affairs at the Court of France, during the absence of the minister plenipotentiary at that Court.' " For some days past, the President has been indisposed with a headache, attended with fever. This morning I went to his house to communicate the resolution to him, and receive his orders on the subject. He is better, but his physicians thought it best that, for the present, no applications should be made to him on public affairs of any kind; consequently the business in question must be postponed. '•< ■ ?^ - : • ^ . ; : „ *' Until the office for foreign affairs is established, the papers and despatches, proper on the occasion, cannot be completed and trans- mitted. When I consider how long you have waited for the result of your application, and the sensations, which repeated disappoint- fnenls must have occasioned, I cannot forbear, thus informally, to acquaint you with the preceding facts, and to mention to you as my opinion, that you may venture to return, and that the earliest op- portunity will be taken of transmitting to Mr. Short the necessary papers. I mean to send you copies of this letter by various routes, and sincerely wish that it may arrive seasonably, and that 1 may have the pleasure of congratulating you on your arrival here early in the autumn. .>» " With the best wishes, and with my sincere esteem and regard, I am, dear Sir, your most obedient and humble servant. « JOHN JAY, " The Hon. Thomas Jefferson, Esq." . , CONTENTION OI 1800 WITH FRANCK. 287 1 capa- It wnj > estab- staDces lie, yet he had hort on lay they Itates of e Presi- vise and to take sence of d with a lis house rders on test that, )n public I must be ;pcrs and nd trans- he result lappoint- iilly, to ou as my liest op- ecessary [s routes, at 1 may re early regard, JAY, v» " Very great and good Friend and Ally. " As the time limited for the duration of Mr. JefTerson^a residence, in quality of our Minister Plenipotentiary *near your Majesty, #ill shortly expire, and the public interests require, that he should un- dertake other functions, we have directed him to take leate of your Majesty, and to assure you of our friendship and sincere de- sire to preserve and strengthen the harmony and confidence, which . 80 happily subsist between the two nations. We are persuaded that he will do this in the manner most expressive of these senti- ments, and of the respect and sincerity with which they are offered. " We pray God to keep your Majesty under his holy protection. " Written at the city of New-York tiie 6th day of April 1790. ^ " Your good friend and ally, "G. WASHINGTON. " To our very great and good friend and ally " His most christian Majesty." ■ The count de Moustier, appointed to succeed M. de la Luzerne as minister, arrived in America in 1788, and had the usual audience with Congress in February of the same year. M. de Moustierf was the last envoy sent by Louis * This expression, " near your Majesty," " near the French Court,'* it is well known, is not conformable to the idioms of the English lan- guage ; — it is a French idiom, peculiar even in that tongue, ns the ad- verb " pres" is not followed by a preposition. We have met with it as early as 1775 or '76, in public documents, immediately after the inter- course began with France, — a literal translation from the French, made by some person in the public offices, not acquainted with the true idiom of the two languages. It appears to us an awkward form of speech, and was not required by the absence of appropriate expres- sions in our language. If we might venture on an opinion in this j)Iace, we can, perhaps, exhibit no better specimens of pure idiomatic English than the state papers (both documents and correspondence) of the first Congress, and of our ministers employed abroad during that period. t M. de Moustier was still living in 1820, near Versailles. He has been conspicuous for his attachment to the royal family. In 1799 he left France, and did not return till 1814. 288 CONVENTION OF 1800 WITH FRANCE. XVI. to this country, and the first French minister recog- nised by the Federal Government. He remained till 1790, anil was succeeded by Colonel Ternan,* as a Minister Pleni. potentiary. Mr. Short was left at Paris in charge of the affairs of the legation ; we extract a paragraph from a letter to him, written by Mr. Jefferson soon after his return. ; " New-York, July 7, 1790. " I mentioned that being cnbout to immorge into the forests of Albemarle, where I should henr nothing of \vh hons was for the moment overthrown — the king in the Temple, a state prisoner, the noblesse and clergy emigrated, the army disorganized and succeeded by the national guard, the Austrians and Prussians expelled, or withdrawn beyond the Rhine, and the National Convention, having met in Sep- tember 1792, decreed the abolition of royalty and the foun- dation of the Republic. It was, also, quite obvious, that the progress of the Revolution had been regular and syste- matic. The crimes and bloody deeds of that period do not admit of defence, but they were susceptible, at the time, of an explanation. No great and sudden changes in a highly civilized condition of society take place without violence ; and when every sort of government, every description of police or authority was obliterated, atrocities could not ex- cite much astonishment in a city of the size of Paris, already too well known in history by one of the most sanguinary transactions of which we have any record. The death of the King, whatever feelings of horror and indignation it might awaken, was considered by many as a political event ; even, indeed, by those eminent men, whose proceedings in VOL,. I. 37 290 CONVENTION OF 1800 WITH FRANCE. the Old Jewry have only been rescued, by the eloquence of Mr. Burke, from tb^c common and wide grave, into which the numberless waitings and dissertations on the French Revolution have fallen. It was one more sacrifice, as Louis himself often said, to the Revolution. Every step, deep in gore as they certainly were, the French people seemed to gain something on the score of liberty. Through the difle- rent stages of the States General, the union of the three or- ders, the National Constituent Assembly, the Legislative Assembly, and the National Convention, when the Republic WAS decreed, the freedom of the citizen was apparently making a conquest over the oppressions and abuses of the ancient and royal government. It seems, therefore, just to remark, that if the Republic was not established, at least the monarchy was overthrown. There was, also, a strong feel- ing of confidence in America that the Revolution would suc- ceed ; not only, because it was the general and most ardent hope and wish of the people, but the complete success of their own undertaking naturally led them to believe^ that the efforts of a nation in the same cause would be attended with results equally fortunate. We find the Cabinet determined, with an unanimous voice, to receive the French Minister, but a difference of opinion appears to have existed, as it respects the conditions, with which this act should be accompanied. Louis XVI. had personally been a constant and great friend and benefac- tor to America. His portrait and that of the queen, a pre- sent to the Congress of the Confederation, for a long time hung in a conspicuous place in the hall of that assembly. The first celebrated treaty of alliance and commerce had been concluded and signed in his name, and by his ministers, and the Republic, whose representative now presented him- self to the notice of the people and the administration, was founded in the blood and on the wrecks of the Bourbon family. Again, the royal government was, still, nominally in existence ; recognised by all the principal powers of Eu- rope ; and exercised by a regency at Coblentz on the Rhine, in the name of Louis XVI., while he lived, and at his death, i m CONVEWTIOli^ OF 1800 WITH FRANCE. 291 was the Dauphin, his son, then a prisoner in the Temple, was immediately proclaimed by the title of Louis XVII. A civil war, limited in extent, though remarkably destructive of life, also raged with uncommon fury in the Bocage or La Vendee. This was the situation of things. The Republic, on one side, actually standing in possession of the authority and the territory belonging to the French nation ; with a slight probability, indeed, on the other, of a restoration of the royal government. It could not, therefore, be consider- ed a departure from the laws of nations to receive the French Minister ; and this the President resolved to do, without any qualifying or explanatory act. Louis XIV., by acknowledging the Pretender, gave great offence to the English Government ; and it was alleged to be one of the principal causes of the war that England de- clared at the time against France. The subject of recog- nising new governments has been much discussed, but no precise rules have been laid down for the regulation of states in this particular. Writers place, perhaps, more stress upon the circumstance of actual possession than any other. For- eign nations have clearly no right to interfere in the domes- tin concerns of other countries ; but when one party is ob- viously master of the power and territory, the neutral state is fully warranted in acknowledging it. And if the first par- ty should ultimately be overthrown and expelled, the suc- cessful one would not have just cause of complaint against the neutral. The reason of this rule is apparent. It is highly desirable that the intercourse of civilized nations should be maintained, and the impropriety, nay, the impos- sibility of the case precludes a close investigation into the domestic affairs of foreign states. M. Genet, appointed by the Executive Council, Minister to the United States, in January 1793, arrived in this coun- try, in April of the same year, in the Ambuscade frigate. He landed in Charleston, South Carolina, and was received with marks of respect, attention and enthusiasm. While at Charleston, M. Genet authorized dill'erent persons to fit and arm vessels, — to enlist men in that port, — and gave commis- 292 CONVENTION OF 1800 WITH FRANCE. sions to cruise, and commit hostiliticr upon nations, with whom the United States were at peace, the port of Charles- ton bein|! particularly convenient for the purpose of molest- ing the English West India trade. Captures, made by those vessels, were soon brought in ; and the French Consuls be- gan, at once, under the authority of the Minister, to try, condemn, and authorize their sale. M. Genet was not at this time accredited as a foreign Minister by the Government of this country^ and actually did not arrive at the seat of government, Philadelphia, till the middle of May. His pro- gress through the country, from Charleston, was attended with every circumstance that could manifest the very deep interest the people took in the French Revolution, and the satisfaction with which a representative from that republic was received in the United States. The Minister must have been well satisfied, that the nation were exceedingly desirous of a union with France ; and were quite prepared to enter, with that country, into a war against the monar- chies of Europe. These sentiments soon became deeply impressed upon the mind of M. Genet, — a man, obviously, of a sanguine temperament, heated and excited by the pas- sions and politics of the times. It is quite in course here to mention a circumstance, that first appears to have allayed the fever heat of the public pulse ; to have awakened the earliest feelings of distrust in the political success of the French. We allude to the death of the King, which happened about this period, and whose willingness to engage in our Revolution was undoubtedly remembered with gratitude. In the outset, the Americans beheld the French revolution with a feeling of delight and admiration, unmingled with that intense anxiety, and often extreme despondency, with which they watched the pro- gress of their own. But, left free to examine and deliberate, the atrocities that accompanied it, and that seemed to accu- mulate, as the abuses, against which they were levelled, dis- appeared, produced in a short time, a slow, but unfailing reaction in the public mind. The execution of the king, without doubt, weakened the party of the National Conven- coifTENTioir or 1800 with riiAivcis. 293 IS, with [Charles- molest- by those isuls be- to try, s not at ernment ! seat of His pro- attended ry deep and the republic ter must cedingly prepared ! monar- e deeply bviously, the pas- nee, that e public listrust in Ithe death whose oubtedly mericans ight and nd often he pro- liberate, to accu- led, dis- |unfailing he king, Conven- tion in the United States. This sacrifice, even if necessary in a political vi6w, was, nc\ ' ithcless, a violation of justice, and the rights of the citi/cn ; fur, if Louis was no longer a king, ho was still a man, a citiyen, amording to the laws of the French Republic. These ciieumstniut < innde a suitable impression upon the Amcitciin people, alt^ays accustomed to the forms of an equal, thou^li Miideviating justice. From the 10th of August, 2d of Septcmly r, and the period uf the King's execution, the revolution decidedly lost friends in this country. This sentiment pervaded the breasts of men whose devotion, even to the French Republic, was beyond suspicion. The celebrated Thomas Paine, it is known, vot- ed against the death of Louis ; though, as Marat artfully insinuated, being a Quaker, he was in conscience opposed to capital punishments. *^ France," said Thomas Paine, in the convention on the question of '* &*urst9," " has now but a single ally, the United States. The person, to whom the present discussion relates, is regarded by that people as their best friend. His execution, 1 assure you, willdifluse among them a general grief. I propose to you to conduct Louis ta the territory of the United States. After a residence of two years, Mr. Capet will fmd himself a citizen of America. Miserable in this country, to which his absence will be a benefit, he will be furnished the means of becoming happy in another." In the early part of the year '92 Gouverncur Mor- ris of New Jersey, was appointed to France, a minister plenipotentiary, as the successor of Mr. Jctferson. He was in Paris at the time of the execution of the king, and at the breaking out of the war of the first coalition. He makes (Feb. 13, 1793) some excellent remarks, truly prophetic, on the consequences of the first mentioned event. " Since my last I have every reason to believe that the execution of Louis IG, has produced on foreign nations the effect I had imagined. The war with England exists, and it is now proper, perhaps, to consider its consequences. In one shape or another this nation will make a bankrupt- cy. The mode, now talked of, is to pay off the debt in a species of paper money, which shall be receivable for the 394 CONTENTION OF 1800 WITH FRANCE. sales of confiscated property, and shall bear no interest. When once the whole of the debt shall be fairly afloat, the single word depreciation will settle all accounts. You will say, pei haps, the measure is unjust, — to which I answer, that in all popular governments, strongly cpnvulsed, it is a suffi- cient answer to all arguments, that the measure proposed, is for the public good. Supposing then the debt of France was liquidated, she presents a >ich surface with 20,000,000 of people, who love war better than labour. Be the form of government what it may, the administration will find war abroad necessary to preserve peace at home. The neigh- bours of France must, therefore, consider her as a great power, essentially belligerent, and they must measure them- selves by the scale of her force. In this view of the sub- ject, to take her Islands is to possess but the parings of her nails. Strange as it may seem, the present war on the part of France is a war of empire ; and if she defends herself she cammands the worlds In April 1793, the celebrated Proclamation of neutrality was issued.* The historian of the first President makes the following remarks in relation to that subject : -v. ; •' u. * " Whereas it appears, that a war exists between Austria, Prussia, Sanlinia, Great Britain, and the United Netherlands on the one part, and France on the other ; and the duty and interest of the U. States require, that they should with sincerity and good faith adopt and pur- sue a conduct friendly and impartial towards the belligerent powers ; I have, therefore, thought fit, by these presents, to declare the disposi- tion of the U. States to observe the conduct, aforesaid, towards these powers respectively ; and to exhort and warn the citizens of the U. States, carefully to avoid all acts and proceedings, whatsoever, which may in any manner tend to controvert such dispositions. And I do, hereby, also, make known, that whosoever of the citizens of the U. States shall render himself liable to punishment or forfeiture under the laws of nations, by committing, aiding, or abetting hostilities against any of the said powers, or by carrying to any of them, those articles, which are deemed contraband by the modern usage of nations, will not receive the protection of the U. States against such punishment or for- feiture ; and further, that I have given instructions to those officers to whom it belongs, to cause prosecutions to be instituted against all per- terest. It, the »u will r, that SI suffi- sed, is France JOjOOO form of nd war neigh- i great 5 them- le sub- of her Ihe part herself, utrality kkes the Prussia, one part, States and p'lr- powers ; disposi- rds these >f the U. which knd I do, f the U. nder the against articles, will not It or for- fficers to t all per- CONVENTION OP 1800 WITH FRANCE. 295 " This measure derives importance from the consideration, that it was the commencement of that system to which the American Government afterwards inflexibly adhered, and to which much of the national prosperity is to be ascribed. It is not less important in another view. Being at variance with the prejudices, the feel- ings, and the passions of a large portion of the Society, and being predicated on no previous proceedings of the legislature, it pre- sented the first occasion, which was thought a fit one, for openly assaulting a character, around which the affections of the people had thrown an armour, theretofore deemed sacred, and for direct- ly criminating the conduct of the President himself. It was only by opposing passions to passions, by bringing the feelings in favour of France in conflict with those in favour of the chief magistrate, that the enemies of the administration could hope to obtain the victory." Under the constitution two parties are concerned in the interpretation of treaties, the judiciary and the executive, but the authority or jurisdiction of the first is exclusively of a domestic nature — to the latter is confided the exercise of the power between this and foreign governments. When a treaty has been concluded and ratified in the usual form, the executive gives notice of the fact by proclamation ; — this is a constitutional exercise of authority — another is to declare the state of the nation, where dangers in the political condi- tion of the world are so sudden or important, as to put in jeopardy the rights or the property of the citizens. The proclamation of '93, was a legitimate exercise of authority, and in a great degree necessary from the consideration, that the interpretation of the treaty of alliance, assumed by the executive, would have rendered many acts, violations of neu- sons, wiio shall, within the cognizance of the Courts of the U. States, violate the laws of nations with respect to the powers at war, or any of them. -.^H. - " Done, &c. "GEORGE WASHINGTON. " By the President, "Th. JErrERSoN." 296 CONTENTION OF 1800 WITH FRANCE. trality, which a portion of the nation considered harmless. It became, therefore, the duty of the Executive to signify to the people the official construction of this instrument. The proclamation was constitutional, although the interpretation might have been erroneous ; — it declares the United States to be in condition of neutrality ; — this is the only fact it professes to establish, or about which any dispute can possibly arise. This state of things was notified in April to the re- spective foreign ministers at Philadelphia, in a circular from the Department of State. " Sir, — As far as the public gazettes are to be credited, we may presume that war has taken place amon;^ several of the nations of Europe, in which France, England, Holland and Prussia are par- ticularly engaged. Disposed ourselves to pursue steadily the ways of peace, and to remain in friendship with all nations, the President of the United States has thought it expedient, l)y the proclamation of which I enclose you a copy, to n^iify this disposition to our citi- zens, in order to intimate to them the line of conduct for which they are to pre()are, and this he has done without waiting for a formal notification from the belligerent powers. He hopes that those powers, and your nation in particular, will consider this early precaution as a proof the more candid, as it has been unasked, of the sincere and impartial intentions of our country, and that what is meant merely as a general intimation to our citizens, shall not be construed to their prejudice in any courts of admiralty, as if it were conclusive evidence of their knowledge of the existence of war, and of the powers engaged in it. Of this we could not give Ihem conclusive information, because we have it not ourselves, and till it is given to us in form, and so communicated to them, we must consider all their acts as lawful, which would have been law- ful in a state of peace. " Mr. Ternant, Mr. Van Berckel, Mr. Hammond." '"^ '" The Cabinet declared, also, by this instrument, the con- struction it intended to put on the * 11th article of the treaty of alliance with France. This article imposed, among other * s ee Treaty in 2d Chapter. CONVENTION OF 1800 WITH FRANCE. 297 rmless. ;nify to The etation States fact it jossibly the re- iar from we may tations of are par- Ihe ways President claraation our citi- for which iting for a lopes that p this early nasked, of that what hall not be y, as if it istence of not give ourselves, them, we been !aw- the con- ^he treaty )ng other things, upon the United States the obligation of protecting the Islands belonging to the French in the West Indies, several of which fell, about this time, into the hands of the British. Bot a step of the kind would have led to an immediate de- claration of war on the part of Great Britain. The article was considered to be applicable to a defensive war only, and that good faith did not require America should take any part in hostilities, till the present French government was obvious- ly and firmly established. The last ground was, perhaps, a just and sound one, but in receiving M. Genet, the administra- tion had furnished the only proof in its power, that it consider- ed the French Republic endowed with that character and con- dition. Whatever government, America recognised as ex- isting in France, had a right to require the fulfilment of the guaranty. Some doubt might reasonably prevail as to the other ground assumed by the Cabinet, not only from the phraseology of the article, but from the extreme difficulty of ascertaining, in all cases, the true character of a defensive or offensive war. The act of the war itself, the mode of con- ducting it, may be altogether oflensive,and yet the immediate cause, defensive ; nations may be driven to hostilities by the oppressive conduct of others ; few manifests of war are pub- lished, that do not present to the world abundant reasons for a resort to arms. The article is, therefore, incomplete, be- cause it does not admit of an immediate and general applica- tion ; — -the party called upon to execute it, is at liberty to construe it, and is at all times the judge, whether assistance is justly required. But, at best, the construciion of the government is an implied one, for the language of the stipu- lation is plain and on the surface free from ambiguity. We confess we are pleased with a remark of Gouverneur Morris on this subject in a letter of December 21, 1792. "The circumstance of a war with Great Britain becomes impor- tant to us in more ways than one. The question respecting the guaranty of American possessions, may, probably, be agitated, es- pecially if France should attempt to dufcnd her islands. There will, doubtless, be many in llie United Stales, who will contend that the treaty made with the King is, at the least, suspended, if not VOL. I. 38 298 CONVENTION OF 1800 WITF FRANCE. abrogated, by the abrogation of his office and authority. Without entering into the numerous arguments on this subject, some of them forcible, all of them plausible, I will only pray your indulgence, while I express my wish, that all our treaties, however onerous, may be strictly fullilled, according to their true intent and mean- ing. The honest nation is that, which like the honest man, v, ' Hath to Ills plighted faith and vow, forever firmly stood, <„•* And tho' it promise to its loss, yet makes that promise good.' " We shall now give a sketch of the proceedings of M. Genet with this government. He came to the United States au- thorized to conclude an alliance both defensive and offensive. We cannot do better than give his own words ; it is not only a specimen of the language, but of the sentiments and feel- ings of the times. " Single against innumerable hordes of tyrants and slaves, who menace her rising liberty, the French nation would have a right to reclaim the obligations, imposed on the United States by the treaties, she has contracted with them, and which she has cement- ed with her blood ; but strong in the greatness of her means and of the power of her principles, not less redoubtable to her enemies than the victorious arm, which she opposes to their rage, she comes in the very time, when the emissaries of our common enemies are making useless efibrts to neutralize the gratitude — to damp the zeal — to weaken or cloud the view of your fellow citizens — she comes, I sa}', that generous nation — that fiiithful friend, to labour still to increase the prosperity, and add to the happiness, which she is pleased to see them enjoy. — The obstacles raised with in- tentions, hostile to liberty, by the perfidious ministers of despot- ism — the obstacles, whose object was to stop the rapid progress of the commerce of the Americans, and the extension of their princi- ples, exist no more. The French republic, seeing in them but brothers, has charged me to propose to your government, to estab- lish in a true family compact, that is, in a national compact, the liberal and fraternal basis, on which she wishes to see raised the commercial and political system of two people, all whose interests are confounded." It was with the feeling and sentiments disclosed in this letter, spread wide through the community and deep seated, Without of them iilgence, onerous, d mean- ™» i, good.'" [.Genet ites au- ffensive. not only ind feel- ves, who le a right ^s by the s cement- neans and r enemies she cornea emies are damp the sens — she to labour ss, which with in- f despot- rogress of ir princi- them but [, to estab- pact, the aised the interests 1 I CONVENTION OP 1800 WITH FRANCE. 299 that the government was compelled, in the unlucky turn of affairs, to contend. The struggle was a difficult one ; for, with the American people, these opinions were not only pure and sincere, but they were permanent ; the same with which the country was inspired at the time of its own revolution ; and they entered, as a principal element, into the form of the government and the organization of society. At this moment, they appeared, it is true, inflamed and aggravated by sympathy for the French, by indignation at the eflbrts of the European governments, directed against the republic ; but it was not a frenzy of the hour, like the scene exhibited in France. America manifested its true legitimate disposi- tion, partaking of the influence of the times. We shall examine those parts of M. Genet's claims, only, that involve principles of the public laws of nations, or that illustrate the system adopted by this country.* This enquiry is not entirely without its advantages. It has been the aim of the government, since that period, to follow the policy then promulgated ; and the principal duties, incumbent on neutral nations, may be ascertained, by an examination of the demands of the French minister. Not intending to mention the instances of violation of public, law that occurred, we shall confine ourselves to the general principles, for which M. Genet contended. He asserted " a right of arming in our ports, of enlisting our citizens, and of exercising consu- lar jurisdiction ;" and denied to the government the rij;ht, either of " restraining him, or punishing them." This is the language, and substance, of the demand. f The question was, not of a vessel arming in her own defence, as no cases of that description had been reported ; on the contrary, the orders of the government were directed against vessels that were manned, armed and equipped in our ports, for the pur- pose of committing hostilities on the subjects of a state, with which this country was at peace. The proclamation of April 22d, did not allow this practice. That instrument enjoined in' this seated, * Letter of Mr. Jefferson, of August 1793. t See liis note of May 25, 171>3, to tlic Secretary of Stfitc 30C CONVENTION OF 5800 WITH FRANCS. upon the citizen to observe a friendly conduct towards all belligerent powers, " according to public law, and the special treaties existing between them and this country." A pre- paration of hostilities is the reverse of this deportment. The treaty with France, of '78 did not allow it ; for it permitted only (17th art.) the armed vessels of either party to enter with their prizes, and to depart freely from the ports of the other. No possible construction of that article can, in any way, justify the manning and equipping of vessels, to commit hostilities ; neither do the laws of nations,"^ or treaties with * Vattel, vol. ii. p. 332. Here we are to consider the obligations and rights flowing from neutrality. In order rightly to understand this question, we must avoid confounding, what may lawfully be done, by a nation that is free from nil engagements, with what she may do, if she expects to be treated as perfectly neutral in a war. As long as a neutral nation wishes securely to enjoy the advantages of her neu- trality, she must, in all things, show a strict impartiality towards the belligerent powers; for, shouhl she favour one of the parties, to the ])rojudice of the other, she cannot complain of being treated by him as an adherent and confederate of his enemy. Her neutrality would be a fraudulent neutrality, of which no nation will consent to be the dupe. But the present question is, to determine what may lawfully bo done ; not what prudence may dictate, according to circumstances. Let us, therefore, examine, in what consists that impartiality, which a neutral nation ought to observe. It solely relates to war, and includes two articles. 1. To give no assistance where there is no obligation to give it ; nor voluntarily to furnish troops, arms, ammunition, or any thing of direct use in war. I do not say, " to give assistance equally," but, " to give no assist- ance ;" for it would be absurd, that a state, at one and the same time, should assist two nations, at war with each other ; and besides, it would be impossible to do it with equality. 2. In whatever does not relate to war, a neutral and impartial nation must not refuse, to one of the par- ties, on account of his present quarrel, what she grants to the other. This does not deprive her of the liberty to make the advantage of the state still serve as her rule of conduct, in her negotiations, her friendly connexions, and her commerce. When this reason induces her to give preferences, in things which are ever at the free disposal of the pos- sessor, she only makes use of her right, and is not chargeable with partiality. I have said, that a neutral state ought to give no assistance to either a I . CONVKNTION OF 1800 WITH FRANCB. 301 other states, at all, authorize the proceeding. These trea- ties are a part of the law of the land, and it is incumbent on the proper law tribunal to enforce their provisions. The citizens can, therefore, have no right to violate the provi- sions of those treaties. If the citizen's, themselves, were not possessed of the privilege of committing acts of hostility, or offence, against those states, with whom the nation was at peace, we are not aware of any provision of national law, or, in the particular case now under consideration, of any provision of the treaty of '78, that can confer this right or power upon an alien. Again, the arming and equipping of vessels, is, obviously, an act of sovereignty ; an act that cannot justly be exercised in the United States, without the permission of the government.* As to the treaty, these are the words of the 2 2d article, the only one, with the excep- tion already mentioned^ that relates to this matter : — " It shall not be lawful for any foreign privateers, not belonging to subjects of his Most Christian Majesty, nor citizens of the said United States, who have commissions from any prince or state in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties.'^ This article denies the privilege of arming, to privateers of any nation, at war either with France or America, in the ports of the other party. The only ground upon which France claimed the privilege, under this article, was, therefore, that of implication. The article not expressly excluding French vessels, at a time when France was at war with England,, of the parties, when " under no obh'gation to give it.'* This restric- tion is necessary. We have already seen, that when a sovereign fur- nishes the moderate succour due in virtue of a former defensive alli- ance, he does not become an associate in the war (§ 101); he may» therefore, fulfil his engagement, and yet observe a strict neutrality. When a war breaks out between two nations, all other states, that aro not bound by treaties, are free to remain neuter ; and if either of the belligerent powers attempted to force them to a junction with him> he would do them an injury, inasmuch as he would be guilty of an in- fringement on their independency, in a very essential point. * Vattel, 1. 3. 15. 302 CONVENTION OF 1800 WITH FRANCE. Spain and Holland, all on friendly terms with the United States, M. Genet insisted with great vehemence upon the use of the right. " It results from this note, Sir, that the commissions, transmitted in virtue of the orders of the Executive Council of the republic of France to the French vessels in the ports of the United States, are merely an authority to arm tlicmsclvcs, founded upon the natural right and constant usage of France, that these commissions have been expedited, at all times, in like circumstances, that their dis- tribution cannot be considered, but as an act of consular adminis- tration, and not of sovereignty, and that every obstruction by the government of the United Stases to the arming of French vessels must be an attempt on the rights of man, upon which repose the independence and laws of the United States ; a violation of the lies, which unite the people of France and of America, and even a manifest contradiction of the system of neutrality of the President, for, in fact, if our merchant vessels and others are not allowed to arm themselves, when the French alone arc resisting the league of all the tyrants against the liberty of the people, they will be ex- posed to inevitable ruin in going out of the ports of the United States, which is certainly not the intention of the people of Ame- rica. Their fraternal voice has resounded from every quarter around me, and their accents arc not equivocal ; they are as pure as the hearts of those, by whom they are expressed, and the more they have touched my sensibility, the more they must interest, in the happiness of America, the nation I represent ; the more I wish, Sir, that the Federal Government should observe, as far as in their power, the public engagements, contracted by both nations, and that by this generous and prudent conduct, they will give at least, to the world the example of a true neutrality, which does not con- sist in the cowardly abandonment of their friends in the moment, when danger menaces them, but in adhering strictly, if they can do no better, to the obligations they have contracted with them. It is by such proceedings that they will render themselves respect- able to all powers, that they will preserve their friends, and de- serve to augment their number." This, however, is not the usual mode of construing trea- ties, or any diplomatic instrument. Nations possess and en- \ t CONVENTION OF 1800 WITH FRANCE. 303 ! United pen the nnsmitted public of tates, are le natural ons have their dis- r adminis- 3n by the :h vessels epose the f the ties, id even a President, illowed to he league vill be ex- he United e of Ame- 'y quarter e as pure the more terest, in )re I wish, as in their tions, and e at least, is not con- moment, they can th them. s respect- and de- ling trea- and en- joy only what is secured to them hy stipulation. The two parties, in this case, agreed to exclude foreign privateers ; they are silent as to their own vessels. , . ♦-. .,* .u " It was of value to each party, to exclude its enemies from arm- ing in the ports of the other, and could in no case embarrass them. They, theretbre, stiptdated so far mutually. But each might be embarrassed by permitting the other to arm in its ports. They, therefore, would not stipulate to permit that. Let us go back to the state of things in France, when this treaty was made ; and we shall find several cases, wherein France could not have permitted us to arm in her ports. Suppose a war between these states and Spain. We know that, by the treaties between France and Spain, the former could not permit the enemies of the latter to arm in her ports. It was honest in her, therefore, not to deceive us by such a stipulation. Suppose a war between these states and Great Britain. By the treaties between France and Great Britain, in force at the signature of ours, we could not have been permitted to arm in the ports of France. She could not, then, have meant, in this article, to give us such a right. She has manifested the same sense of it again, in her subsequent treaty with England, made eight years after the date of ours; stipulating, in the IGth article of it, as in our 22d, that foreign privateer.^, not being subjects of either crowTi, should not arm against either in the ports of the other. If this had amounted to an affirmative stipulation, that the subjects of the other crown might arm in her ports, against us, it would have been in direct contradiction to her 22d article with us." It has already been said that M. Genet, on his first arri- val in Charleston in April '93, issued commissions to priva- teers, and authorized the enlisting of men, both Americans and Frenchmen, for the service of the Republic of France. An investigation of this business was undertaken in the au- tumn of the same year by the Legislature of South Carolina, and satisfactory evidence produced, that several citizens had received commissions to enlist men within the United States, for the purposes of hostility against the enemies of France. The Governor issued a proclamation in December, forbid- ding these practices, and the law officers of the state were directed by the Legislature to institute prosecutions against 304 CONVENTION or 1800 WITH FRANCE. certain persons, named in the report of the Committee of In- vestigation. Before this took place, however, two citizens of the United States, Gideon Henfield and John Singletary, had been arrested on board a French privateer and conduct* ed to prison. M. Genet demanded their release in the fol- lowing words: • i " I have this moment been informed that two oHficers in the ser- vice of the Republic of France, citizens Gideon IIcnBeld and John Singletary, have been arrested on board the privateer of the French Republic, the Citizen Genet, and conducted to prison. The crime laid to their charge, the crime which my mind cannot conceive, and which my pen almost refiisps to sliito, is the serving of France, and defending with her children the common and glorious cause of liberty. " Being ignorant of any positive law or treaty, which deprives Americans of tbis privilege, and authorizes otTicers of police 5>rbi- Irarily to take mariners in the service of France, from on l>oard their vessels, I call upon your intervention, sir, and that of the President of the United States, in order to obtain the immediate release of the above mentioned officers, who have acquired, by the sentiments animating them, and by the act of their engage- ment, anterior to every act to the contrary, the right of French citizens, if they have lost that of American." These two cases include the whole principle involved in the important discussion of the right of a citizen to commit an act of hostility, under his own or foreign colours, upon a state with which his own country is at peace. On this sub- ject we shall quote the opinions of the Attorney General and ;an extract from a letter of Mr. Jeiferson, Secretary of State. " 1st. It may well be doubted how far the Minister of France lias a right to interfere. Henfield is a citizen of the United States, And it is unusual, at least, that a foreign power should interfere in a question, whether, as a citizen, a man has been guilt}' of a crime ? Nor can any authority be derived from Henfield being under the protection of the French Republic, because, being still a citizen, lie is amenable to the laws which opcrale on citizens, and the very act, by which he is said to have been taken under such protection, is a violation of the sovereignty of the United States. If he be in- I! CONTENTION OF 1800 WITH FRANCE. 305 tee of In- citizens ingletary, conduct* n the fol- in the ser* 1 nnd John Ihe French The crime [ conceive, of France, ■iou9 cause h deprives )olice s'rbi- n on hoard that of the immediate, squired, by ir engage- of French volved in commit upon a this sub- neral and of State. •f France ted States, iterfere in a crime ? under the a citizen, the very irotection, he be in- nocent, he will be safe in the hands of his countrymen : if guilty, the respect due by one nation to the decrees of another, demands that they be acquiesced in. » ■ " 2. But Henficld is punishable, because treaties are the supreme law of the land, and by treaties with three of the powers at war with France, it is stipulated that there shall be a pence between their subjects and the citizens of the United States. " 3d. He is indictable at the common law, because his conduct comes within the description of disturbing the peace of the Unit- ed States. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war l»y the authority of its individual citizens ; but this is not true, either on the general principles of society, or by our constitution, which gives that power to Congress alone, and not to the citizens individ- ually. Then the first position was not true, and no citizen has a right to go to war of his own authority, and for what he does with- out right, he ougiit to be punished. Indeed, nothing can be more obviously absurd tiian to say, that all the citizens may be at war, and yet the nation at peace. It has been pretended, indeed, that the engagement of a citizen in an enterprize of this nature was a divestment of the character of a citizen, and a transfer of jurisdic- tion over him to another sovereign. Our citizens are certainly free to divest themselves of that character by emigration and other acts, manifesting their intention, and may then become the sub- jects of another power, and free todo whatever the subjects of that power may do. But the laws do not admit that the bare commis- sion of a crime amounts of itself to a divestment of the character of citizen, and withdraws the criminal from their coercion. They would never prescribe an illegal act among the legal modes by which a citizen miglit disfranchise himself; nor render treason, for instance, innocent, by giving it the force of a dissolution of the obligations of the criminal to his country." . By the direction of M. Genet, some of the French con- suls established admiralty courts in this country, and exer- cised admiralty jurisdiction over vessels taken by French • cruisers. This assumed right deprived our own courts in all cases of jurisdiction over vessels brought into, or claim- ed in, our waters, as prizes of one of the belligerents. It VOL. I. 39 300 CONVENTION OV 1800 WITH FRANCE. comUI not, therefore, be permitted to our own tribunals to as- certain, under any circumstance, whether prizes, claimed as such, were justly so or not. Mr. Jeflferson concluded a con- vention at Versailles in November 17ttb, with M. do Mont- morin, one of the Secretaries of State, defining the powers, privileges, and duties of consuls. This convention was to I'cmuin in force twelve years; but it contains no stipulation, whatever, allowing consuls to exercise admiralty jurisdiction. Neither does the treaty of '78 cede any similar power or jurisdiction to the French consulates. The courts of the United States cannot pretend to exercise a jurisdiction over vessels taken on the high seas, for it is matter of common usage, that the decision of all such questions shall be refer- red to the courts of the sovereign of the captor. This right is, moreover, confirmed by the 17th article of the treaty of '78. The United States have never pretended to enquire into the validity of it ; but as they have, in no pub- lic act or instrument, whatever, divested their own courts of the cognizance of all offences committed within their own waters, the French consulates obviously usurped power that belonged to other tribunals. It is not only the right, but, also, the duty, of the American government, to protect the vessels of neutrals within their own jurisdiction. Indeed, this provision is inserted in most of their treaties, particular- ly with France itself. Niitions difl'cr as to the distance to which this right extends, but in no case is the distance claim- ed (except in the doctrine of close seas) so great, as to make the rule unreasonable. A reasonable distance, therefore, under all the circumstances of the case, is the extent of juris- diction to which the right is aj)plicci. If our courts have not this jurisdiclion, it is quite evident, that neutrals may be taken in our harbours, from our wharves, and condemned as legal prizes in our own cities, by the agents of a foreign government. The French minister maintained this pretension with more vehemence and a more resolute spirit than any under the treaty of alliance ; — exceedingly valuable to his govern- ment, as it would have converted the whole American coast S to 89- imed as 1 a con- 3 Mont- powers, was to xilation, sdiction. ower or ) of the ion over common )e refer- •. This ! of the ended to no pub- courts of tieir own wer that ght, but, )tect the Indeed, irticular- jtance to 26 claim- to make lerefore, of juris- rts have may be mned as foreign on with ly under govern- an coast I I coifTCNTioif or 1800 with rnANcc. SOT into a shelter for the captures of all privateers under tho French flag. VVc shall recite entire aleltcr he wrote on this subject to Mr. Jeflerson. " Sir — Discussions are short wlion mutters arc t:ikrn upon their true principles. Let us explain ourselves ns republiciins. Let n» not lower ourselves to tho level of the ancient politics by (li|ilo- niiitic subtleties. Let us be as Crank in our cvorturcs — in our declu- ratlons, as our two nations are in their afioctionsi, ami hy this plain and sincere conduct arrive at the object by the shortest way. " All the reasonings, sir, contained in the letter, »vhich you did me the honour to write me the 17th of this month, are extremely ingenious; but 1 do not hesitate to tell }ou, that they rest on a ba- sis, which 1 cannot admit. You oppose to my complaints, to my just reclamations upon the footing of right, the private or public opinions of the President of the United States ; and this Egis, not appearing to you sufhcient, you bring forward aphorisms of Vattel to justify or excuse infractions, committed on positive treaties. Sir, this conduct is not like ours. In arriving among you, 1 have, with candour, said that the Frcncii nation, cherishing the interests of the United States more than our own, occupied themselves but on their happiness in the midst of surrounding dangers, and instead of press- ing them to fulfil towards them all the obligations, imposed on them by our treaties, by gratitude and by provident policy, they have just granted new favours to their commerce, opening to them all the ports in the two worlds, in a word, assimilating them to her own citizens. " Such amicable and disinterested proceedings should render the federal government, sir, industrious in seeking, at least, all the means of serving us as far as circumstances would permit them ; but instead of waiting, till Congress had taken into consideration the important subjects, w hich should already have occupied them, until they have determined whether the war of liberty, whether the fate of France and lier colonics were indifferent objects for America, until they had decided, whether it was tlie interest of the United St.ites to profit or not, of the situation in which French magnanimity places them, they liave been urged on by, I know not what, influence to pursue another conduct. They have multi- plied diflicuUies and embarrassments in my way. Our treaties 308 CONVENTION OF 1800 WITH FRANCE. have been unfavourably interpreted. Arbitrary orders have di- rected against us the action of the tribunals ; indeed, my diplomatic reception excepted, I have met with nothing but disgust and obsta- cles in the negotiations I have been charged vith. *' It is not thus that the American people wish, we should be treated. I cannot even suppose, and I wish to believe, that mea- sures of this nature were not conceived in the heart of General Washington — of that celebrated hero of liberty. I can attribute them only to extraneous impressions, over which time and truth will triumph. I request you, therefore, sir, to hny before this first magistrate of your Republic the two enclosed protests, which have been just transmitted to me by the Consuls of the Republic of France at New- York and Philadelphia. You will see therein, that these officers complain that French prizes, the jurisdiction of which belongs exclusively to the consular tribunals, have been seized in these two ports by orders of the President. I expect from the equity of the Federal Government, sir, the immediate redress of these irregularities, and I venture to hope, also, that the President would be pleased to examine, again, the affair of the ship Republi- can of New- York, and consider, whether (independent of the right which we have to fit out privateers) any of the expressions used by Consul Hauterive to reclaim the giving up of the seizure, made of that vessel, proves that she has been armed for this purpose. The citizen Hauterive has clearly shown, on the contrary, that she was armed by Frenchmen at the time, when the most religious of all duties prompted them to fiy from all parts of the world to the succour of their country, and to fulfil towards her those duties, to which the Americans would be equally bound, if we had not the desire to leave to their wisdom and their honour the um- pirage of their conduct. It is incontestable, that the treaty of com- merce (art. 22d) expressly authorizes our arming in the ports of the United States, and interdicts that privilege to every enemy nation. Besides, this act forms but a part of our conventional compacts, and it is in them, collectively, that we ought to seek contracts of alli- ance and of commerce, simultaneously made, if we wish to take their sense, and interpret, faithfully, the intentions of the people, who cemented them, and of the men of genius, who dictated them. If you cannot protect our commerce and our colonies, which will, in future, contribute much more to your prosperity than to our own, CONVENTION Or 1800 WITH FRANCE. 309 at least, do not arrest the civisim of your own citizens, do not ex- pose them to a certain loss hy obliging Ihem to go out of your ports unarmed. Do not punish the brave individuals of your na- tion.^ who arrange themselves under our banner, knowing perfectly well, that no law of the United States gives to the government the said power of arresting their zeal by acts of rigour. The Ameri< cans are free, they are not attached to the glebe, like the slaves of Russia, they may change their situation, when they please, and by accepting at this moment the succour of their arms, in the habit of trampling on tyrants, we do not commit the plagiat, of which you speak. The true robbery, the true crime, would be to en- chain the courage of these good citizens, of these sincere friends to the best of causes. " I am ignorant, sir, of the constitutional Judges, to whom the Federal government appear to have it in contemplation to refer the different-questions of public right, which have arisen between us; but it appears to me, that these judges can be looked upon only as counsellors, since no particular tribunal has the right or power to interpose between two nations, whose only arbiters, ivhen they have a sincere desire to live fraternally and amicably together, must be, in the present state of human societies, good faith and reason. « Various violations of our sovereignty were at this time committed by French cruisers, and equally of our jurisdic- tion by French consulates. The government, however, con- ducted itself with steadiness and firmness; and the vessels, thus illegally taken and coiulcmned, wherever they could be reached, were restored. The language of M. Genet was, also, unbecoming and ex- ceptionable. The following passages, extracted from a letter of Mr. Jefferson, the Secretary of State, are especially obnox- ious to censure. -We have thought it necessary to mention them, as the recall of M. Genet was solicited by this govern- ment. The reader will be satisfied, we believe, that it was not done without abundant reasor^. " The philosophical principles proclaimed by the President. " This refusal tends to accomplish the infernal system of the king of England, and of the other kings, his accomplices, to destroy by famine French freemen and freedom. 310 CONVENTION OF 1800 WITH FRANCE. " That the secretary of war, to whom I communicated the wish of our governments of the Windward Ishinds, to receive promptly some cannon and some fire arms, which might put into a state of defence possessions, guarantied by the United States, had the front to answer me, with an ironical carelessness, that the principle!*, established by the President, did nut permit him to send us so much as a pistol. ; • . ;^ = " In vain the desire to preserve peace leads you to sacrifice the interests of France to this interest of the moment, in vain the thirst of riches preponderates against honour in the political balance of America ; all this management, all these condescensions, all this humiliation, end in nothing. Our enemies laugh at it, and the French, too confident, are punished for having believed, that the American nation had a flag, that it had some respect for its laws, some conviction of its force, and that it had some sentiment of its dignity. It is not possible for me to paint to you all my sensibility at this scandal, which tends to the diminution of your commerce, to the oppression of ours, and to the debasement and vilification of republics. " If our fellow citizens have been deceived, if you are not in a condition to maintain the sovereignty of your people, speak ! we have guarantied it, when we were slaves. We know how to ren- der it respectable, being free."* The pretensions of the French Envoy, coupled with the mode in which they were asserted, not only to the govern- ment but even to the people, made it at last absolutely neces- sary that an application for his /eeall should be transmitted. The American minister at Versailles was, accordingly, direct- ed, in the month of August '93, to request that a successor might be appointed. M. Genet was recalled with an expres- sion of the disapprobation of his government, and about the same time, the recall of Gouverneur Morris was, also, solicit- ed. To this the American Executive acceded. He was re- placed by Mr. Monroe, and M. Fauchet succeeded M. Genet. It is proper, however, to gay that in consequence of intelli- gence having been received that M. Genet was fitting out two * Anglophobists, or Anglomcn, was the term employed by M. Genet, to designate the determined friends of the neutral policy. I the wish promptly a state of I the front irinciples, IS so much crifice the 1 the thirst balance of IS, all this t, and the d, that the ir its laws, nent of its sensibility commerce, lification of re not in a speak ! we lovv to ren- with the je govein- ely neces- lansmitted. ;ly, direct- successor n expies- about the so, solicit- e was re- iM. Genet, of intelli- ig out two M. Genet, CONVENTION OF 1800 WITH FRANCE. 311 expeditions in the territory of the United States against Spain, the government determined to suspend his fun- 'ions within — days, unless one or the other house of Congress should not think it advisable. Congress obviously had nothing to do with this business.* ->'.;■>,'■■"-:■,.-;;■- ■ We noay be permitted in this place to make a remark or two on the conduct of the French envoy. The circumstances of the times, and the fact that his recall was the first exercise of that sort of power by the government, give more than usual importance to his case. M. Genet did the cause of the Revo- lution a serious injury in America. His intemperate language, his extraordinary communications, irritated the government, and alarmed the grave, thinking part of the nation. No nego- tiations could b" held with him, and though his appearance here awakened a prodigious popular feeling, as the presence of any other minister from the " Republic" would have done, we have no doubt but that his public deportment soon pro- duced a serious reaction, fatal, indeed, to the expectations of the National Convention. Never was one nation more dis- posed to unite with another, than was America with France. M. Genet's violence, and deplorable ignorance, or as lamenta- ble indifference of indispensable diplomalic forms, raised a great party against him, who, to say the least, would, under other circumstances, have remained neutral. They came forward to maintain the d' ,nity of an administration, whoso * M. Genet (sometimes written in tlic MonitPtn* Genesl) was ap- pointed, early in tiic Revolution, ;i Cliargi'^ to St. Potcrsl)iirg ; l)iit llio Empress refiiseci to receive him. lie then wont to llolhnul, luul was subsequently appointed to the United States. Sonietiinc in tiie year '93, lie appears to iiavebeen dcnonnced at the society of "Jacobins" in Paris, for having embroilled (broiiiile) iiis government " with Wash- ington." No one will hesitate to acoorfl to this minister a vigorous, acute and ready mind. Making a suitable allowance for the beat and taste of the times, much of his correspondence is composed with force and eloquence ; — a similar expression of ajiplause is, also, justly due to that of M. Adet, one of his ^•u^cessors. M. Genet, by the aid of his appearance, manners and cause, produced an extreme sensation in this country. Before the revolution ho was first secretary to the board of interpreters in the department of foreign afluirs. 312 CONVENTION OF 1800 WITH FRANCE. duties were interpreted and even dictated hy a foreign func- tionary — to preserve the country from a war, into which they were about to be involved without the consent and almost the knowledge of their own rulers. This state of things, also, brought out with zeal, activity and firmness all those men, who had been concerned in establishing the Federal Consti- tution. The work, so recently completed, was in jeopardy. Part of the danger arose from the steps taken by the French envoy ; and it was unavoidable, but that a part of their op- position should be directed against him and his cause. A large portion of this party became opposed to the Revolu- tion, urged by apprehensions fur the constitution. In truth, the reaction, caused by M. Genet's intemperance and vio- lence, was one of the circumstances that enabled the govern- ment to support, in a tolerably efficient manner, its system of neutrality. If he had conducted himself with the discretion and propriety of his successor, M. Fauchet, it is in some de- gree doubtful whether, with all the advantages derived from the personal character of the President and the talents of the Cabinet,* the administration would not have been compelled to recede. ' -^ At the time of his appointment, Mr. Monroef was in op- * Mr. Adams was then Vice President, and Mr. Jefferson and Mr. Hamilton were botli in the Cabinet. The. country lias never seen a more powerful administration. - '- . t Rlr. Monroe was received and accredited in the bosom of the Na- tional Convention. The President was directed to give him the fra- ternal embrace, in token of the friendship that existed between France and America. "The Minister entered the hall amidst the cries of • Vive la Kepublique ;' and the President having announced, that Mr. Monroe spoke only the English language, one of the secretaries of the Convention was ordered to read a translation of the discourse the Minis- ter bad prepared." — Monileur. The address of Mr. Monroe is plain, sensible, and appropriate to the occasion. But the answer of the Pre- sident was rhetorical in the extreme, and concluded with this expres- sion — " Why shotdd I delay to confirm this friendship by the fraternal «nd)race I am directed to give you in the name of the French people. Come and receive it iu the name of the American people, and may this scene destroy the last hope of the impious hand of tyrants." " The ii: X CONVENTION OF 1800 WITH FRANCE. 313 n func- ch they lost the ;s, also, e men, Consti- opardy. French beir op- ise. A Revolu- n truth, md vio- govern- ystem of iscretion iome de- ^ed from its of the jmpelled as in op- and Mr. [er seen a ?f tlie Na- the fra- 511 France cries of that Mr. lies of the [he Minis- is plain, ' the Pre- Is expres- 1 fraternal Ih people. \ may this « The position to the administration, and, being in the Senate of the United States from Virginia, had taken an active part in resisting some of the principal measures of the cabinet, par- ticularly the nomination of Mr. Gouverneur Morris to France, and of Mr. Jay to London. The appointment was, there- fore, unexpected to him, but the manner, in which he con- ducted the negotiations of the country abroad, was not satis- factory to President Washington. We believe this is the only considerable nomination in our history of an individual, decidedly hostile to the administration, and as there was, at that period, great party heat, the policy of the measure must be regarded as exceedingly doubtful. We do not mean, as it relates to the interest of either party, but solely in refe- rence to the political system of the administration. A citi- zen, publicly and resolutely opposed to every measure of a Cabinet, is still employed by that Cabinet in important and confidential business ! peculiar and strong circumstances must, indeed, exist to make such an appointment either judi- cious, necessary, or salutary. In this particular instance the experiment failed. And even before Mr. Monroe left the country, the instructions of the Secretary of State furnish pU the proof possible, that this envoy extraordinary and min- ister plenipotentiary, despatched, to say the least, upon the second most important mission in the gift of the govern- ment, did not even possess the confidence of that govern- ment. Other instructions sent to him, while abroad, also, «how that he never succeeded in securing that confidence. And, at last, he was recalled with the displeasure of the ad- ministration. In the peculiar state of parties and of the country at the time, the Cabinet appears to have committed an error in recommending this appointment, though it was made for the sake of rendering an acceptable service to the French government, displeased with the conduct of Mr. Morj-is.* Minister was conducted to the President, who gave the kiss and em- brace in the midst of universal acclamations of joy, delight, and admi- ration."— A/o»i7eur year 2, Ao. 329. * The following is part of an instruction to Mr. Monroe, from the VOL. I. 40 314 CONVENTION OF 1800 WITH FRANCE. The mission of Mr. Jay to England caused great uneasi- ness in France, in which Mr. Monroe fully participated, having, himself, no special instructions on that head, and the only information, with which he was intrusted by the gov- ernment, leading him to suppose that the object of the enar bassy was not of much consequence, and could not disturb the relations of this country with France, though, at that time, by no means, of the most settled or friendly descrip- tion. But the reports, that reached Paris, were of a different character, and at variance with the representations of the Secretary of State, dated Philadelphia, June 1794,— the turn of ex- pression of the first paragraph is somewhat peculiar. " You have been nominated as the successor of Mr. Gouverneur Morris, in the of- fice of minister plenipotentiary of the United States of America to the Republic of France, from a confidence, that, while you keep stjadily in view the necessity of rendering yourself acceptable to that govern- ment, you will maintain the self respect due to your own." — " We have pursued neutrality with faithfulness ; we have paid more of our debt to France than was absolutely due, as the Secretary of the Treasury asserts, and we should have paid more if the state of our af- fairs did not require us to be prepared with funds for the possible event of war. We mean to continue the same line of conduct in fu- ture, and to remove all jealousy with respect to Mr. Jay's mission to London, you may say, that he is positively forbidden to weaken the engagements between this country and France. It ia not improbable, that you will be obliged to encounter on this head, suspicions of various kinds. But you may declare the motives of that mission to be, to obtain immediate compensation for our plundered property, and restitution of the posts. " Should you be interrogated about the Treaty of Commerce, you may reply that it has never been proposed to us by M. Fauchet. As to any thing else concerning it, you will express yourself not to be in- structed, it being a subject to be negotiated with the Government here. *' In like manner, if a treaty of alliance, or if the execution of the guaranty of the French Islands by force of arms, should be proposed, you will refer the Republic of France to this side of the water. In short, it is expected, with a sure reliance on your discretion, that you ■will not commit the United States by any specific declaration, except where you are particularly instructed, and except, too, in giving testi- mony of our attachment to their cause." .: CONVENTION OP 1800 WITH FRANCE. 315 uneasi- ipated, and tbe e gov- he eiUT disturb at that lescrip- lifferent of the rn of ex- ou have in the of- ca to the ) stjadily t govern- »» «« We re of our y of the of our af- possible uct in fu- lission to nken the .probable^ various to obtain ion oj" the srce, you ^het. As to be in- ternment in of tbe >roposed, Iter. In 1 that you 1, except ing testi- American minister. His position was certainly an awkward, embarrassed one, and it was not a gracious proceeding to withhold from him the real purpose of Mr. Jay's mission, and at the same time, instruct him to make assurances to the Directory, which must have left an impression unfavour- able to the American minister and his government. . In January 1796, Mr. Monroe wrote in these terms to the Sec- retary of State : " After my late communications to the committee of public safe- ty, in which were exposed freely the objects of Mr. Jay's mission to England, and the real situation of the United States with Great Britain and Spain — I had reason to believe, that all apprehension on those points was done away, and that the utmost cordiality had now, likewise, taken place in that body towards us." — ^^ I am sorry, however, to add that, latterly, this prospect has been cloud- ed by accounts from England, that Mr. Jay had not only adjusted the points in controversy, but concludtid a treaty of commerce with that government ; some of these accounts state, that he had, also, concluded a treaty of alliance offensive and defensive. As I know the baneful effect, which these reports would produce, I deemed it my duty, by repeating, what I had said before of his powers, to use my utmost endeavours informally to discredit them." — " As 1 had just before received a letter from Mr. J»y, announcing that he had concluded a treaty, and which contained a declaration, that our previous treaties should not be affected by it, I thought it fit to make his letter the basis of my reply." '^ I cannot admit for a moment, that Mr. Jay has exceeded his powers, or that any thing has been done, which will give just cause of complaint to this Republic : 1 lament, however, that he has not thought himself at liberty to give me correct information in that respect, for, until it is known that their interest has not been wounded, the report will certainly keep alive suspicion, which always weakens the bonds of friendship. I trust, therefore, you will deem it expedient to advise ros on this head, as soon as possible." While harassed by a want of information, he received a short letter, dated London, Feb. 19, 1795, from Mr. Jay, i^ 316 CONVENTION OF 1800 WITH FRANCE. that did not remove a single difficulty, by which he was op- pressed. " On the 6th of the month, 1 had the honour of writing to you a letter, in answer to your's of the 17th ultimo, by Mr. Purvinnce, who is still here, waiting for an opportunity to return, and who will be the bearer of that letter." " You will receive this by Colonel Trumbull, who, for some time past, has been waiting for an opportunity to go through Paris to Stutgard on private business of his own. He did me the favour to accompany me to this country as my secretary. He has been privy to the negotiation of the treaty between the United States and Great Britain, which I have signed, and having copied it, is perfectly acquainted with its contents. He is a gentleman of hon- our, understanding and accuracy, and able to give you satisfactory information relative to It. 1 have thought it more advisable to au- thorize and request him to give you this information personally, than to send you written extracts from the treaty, which might not be so satisfactory. But he is to give you this information in per- fect confidence that you will not impart it to any person whatever, for, as the treaty is not yet ratified, and may not be finally con- cluded in its present form and tenor, the inconveniences, which a premature publication of its contents might produce, can only be obviated by secrecy. In the mean time, I think myself justifiable in giving you this information in question, because you are an American minister, and because it may not only be agreeable but perhaps useful." In making some remarks on this letter and affair, Mr. Monroe observes, " A few days after this, I was favoured with a letter from Mr. Hitchborne, an American gentleman of character here (from Mas- sachusetts) of which I enclose you a copy, stating the contents or outlines of the treaty in question, as communicated to him by Colonel Trumbull, with a view that he might communicate the same to me for the information of this government. I was sur- prised at this incident, because I could not suppose that Colonel Trumbull would take this step, or any other without the instruc- tion of Mr. Jay, and it seemed to me extraordinary, that Mr. Jay should give such an instruction, or mark to him such aline of con- 1' comrEirrioN of 1800 with franck. 317 vas op- to you a rviance, and who or some gh PariH e favour tas been id States lied it, is n of hon- tisfactory ble to au- irsonally, might not n in per- irhatever, ally con- , which a n only be Ijustitinble u are an cable but lir, Mr. Ifrom Mr. 'om Mas- Intenta or him by :ate the Iwas sur- Colonel instruc- Mr. Jay of con- duct. I was not surprised that Colonel Trumbull should confide the purport of the treaty to Mr. Hitchborne, for he merited the confidence, but I was surprised that Mr. Jay should write me it was to be communicated to ine only as a public minuter, ^c, to be imparted to no one else, and that Colonel Trumbull, however deeply impressed he might be, after his arrival here, with the propriety of removing the doubts of this government upon that point, should consider himself at liberty to communicate the same to a third person, to be communicated to me under no injunction whatever. I was, however, possessed of the paper in question, and it was my duty to turn it to the best account for the public in- terest, that circumstances \vouUl now admit of. It was, it is true, the most informal of all informal communications, and one, of course, upon which no official measure could be taken, yet the character of the parties entitled it to attention. Upon mature re- flection, therefore, and the more especially, as I did not wish to meet the committee again on that point, until I heard from you, lest I should be questioned, why this new mode of diplomatic proceeding was adopted, I thought it best to send the paper in by my secreta- ry, Mr. Gouvain (a young gentleman, who has acted with me since the provisional nomination of Mr. Skipwith to the consulate) in- structing him to assure the members on my part, that they might confide in the credibility of the parties. The paper was present- ed to M. Merlin de Douay, with the comments suggested, and since which, I have neither heard from the committee, Colonel Trumbull or Mr. Jay on the sulject." M. Fauchet arrived in February '94, in this country. The consuls, having assumed admiralty powers, and having, in other respects, interfered with the exercise of the laws, the exequaturs of several were withdrawn. One of the most striking violations of the sovereignty of the country occurred in the case of M. Duplaine, vice consul of France at Boston. This individual, in August '93, assisted a party of armed men from the frigate, La Concorde, then lying in Boston harbour, to rescue a schooner, called the Greyhound, taken by a French privateer, from the hands of an officer of the United States' Court.* * « George Washington, President of the United States of America, 318 CONVENTION OF 1800 WITH FRANCE. M. Fauchct, instructed to renew the applications made hy M. Genet, for an alliance, or a guaranty of the islands in the West India seas, or for aid in money, munitions and naval stores, — was principally engaged, during the short time he remained in the country, in remonstrating against the deci- sions of our courts, in relation to prizes taken by French privateers, or in soliciting the interposition of the executive. That part of the constitution, which separates the executive from the judicial authority, could have been but little under- stood by the ministers, sent to America, by the European states, during the first years of the government, as it appears to all whom it may concern : — The Sicur Antoine Cliarbonnet Du- plaine, heretofore having produced to nie his commission as Vice Con- sul for the Republic of France within the States of New Hampshire, Massachusetts, and Rhode Island, and having thereon received irom me an exequatur, bearing date the 5th duy of June 1793, recognising him as such, and declaring him free to exercise and enjoy such func tions, powers and privileges os are allowed to vice consuls of the French Republic by the laws, treaties and conventions in that case made and provided ; and the suid Sieur Duplaine having, under colour of his said office, committed sundry encroachments and infractions on the laws of the land, and particularly having caused a vessel to be rescued with an armed force, out of the custody of an officer of jus- tice, who had arrested the same by ])rocess from his court ; and it be- ing, therefore, no longer fit nor consistent with the respect and obedi- ence due to the laws, that the said Sieur Duplaine should be permitted to continue in the exercise and enjoyment of the said functions, privi- leges and powers, these arc, therefore, to declare, that I do no longer recognise the said Antoine Charbonnet Duplaine, as Vice Consul of the Republic of France in any part of these United States, nor permit him to exercise or enjoy any of the functions, powers, or privileges allowed to the Vice Consuls of that nation ; and that I do, hereby, wholly revoke and annul the said exequatur, heretofore given, and do declare the same to be absolutely null and void from this day forward. In testimony whereof, I have caused these letters to be made patent, and the seal of the United States of America to be hereunto affixed. " Given under my hand, this day of in the year of our Lord 1793, and of the independence of the United States of America, the eighteenth. «« GEORGE WASHINGTON. " By the President : — Th : Jefferson." CONVENTION OV 1800 WITH FRANCE. 319 made by ids in the nd naval t time he the deci- y French xecutive. sxecutive le under- Buropean it appears lonnet Du- 9 Vice Con- tlainpshire, ;eived irom recognising such func- sula of the I that case nder colour ractions on vessel to be icer of jus- and it be- and obedi- e permitted ions, privi- no longer Consul of nor permit privileges o, hereby, en, and do y forward, de patent, affixed, n the year States of Iton. to have been a general belief, that the executive was autho- rized to interpose, and set aside or direct the decisions of the courts. M. Fauchet made great complaints of the viola- tion of our neutrality by British cruisers ; and, in some in- stances, his complaints were well founded. British vessels did, undoubtedly, equip in our ports, and anchor, with their prizes, in our waters, particularly in Lynnhaven bay, and other parts of the Chesapeake. Foreigners, and our own citizens in some cases, armed vessels privately, for illegal purposes. But the reproaches uttered at this time against the government, and particularly the courts of law, are en- tirely groundless. Many intricate questions came before those tribunals; questions new to them, and embarrassed by the confusion often arising from the mixture of state and na- tional sovereignty, and entering very deeply into a wide and obscure range of neutral and belligerent rights. It is, also, right to add, (hat some of the cases were not divested of all appearance of fraud and collusion. The just duties of a neu- tral nation were occasionally overlooked in the temptations, that an evasion of the laws offered ; but the decisions of the courts were delivered with firmness, intelligence and impar- tiality. We can now judge of them, without any of the ex- citement or predilections of that day. Every principle of public law, then touched upon, has been confirmed by the whole practice of the government to the present hour. The administration, acting with vigour and independence, pro- claimed, at an early period, the system by which its conduct would be regulated. Steady and faithful to its purposes and doctrines, if its neutrality was sometimes violated, it is only to be attributed to the impossibility of executing, with a fee- ble naval force, its laws, on a coast, so extensive, where deep and spacious bays, or inlets, afforded shelter to the vessels of the belligerents. The numerous and precise in- structions issued to its officers, its frequent communications with the state executives, bear witness to the solicitude, with which it was animated to render a full measure of jus- tice, according either to treaties or public law, to the differ- ent parties, engaged m the disastrous war of that period. 820 CONTEMTION OF 1800 WITH FRANCK. The nation was young and unconfirmed ; it had achieved a great exploit in the separation from the mother country — so greut indeed, that the necessity of further efforts, and even denials, was not at once apparent ; the second union was just effected, — hut the creation of this government was, at first, rather known and felt in the intemperate reproaches and accusutions of the two vast parties, that then mutilated and preyed upon it, than by any well defined and acknow- ledged power and authority it possessed, either abroad or within itself. The state authorities had existed from the foundation of the country ; they were the governments, in reality, declared free by the act of July '76, and acknow- ledged sovereign and independent by the peace of '83 ; — they still continued, perhaps, and with reason, more jealous of their rights, from the institution of another power in the midst of them. There was no navy, no military force ; and (he government had most difficult laws to execute in most difficult times. It could not prevent every violation of them ; but it displayed, on all occasions, a fixed resolution to main- tain the faith of treaties, the principles of public law, and the dignity of the people. The correspondence of M. Fauchet with the government, though not free from some peculiarities in diplomatic inter- course, bears the impression of a more subdued, measured character, than that of his predecessor. It does not appear, that he undertook any justification of the acts or language of M. Genet ; nor are we aware that any explanations were of- fered by him, concerning the painful step, the administration were compelled to take, in relation to that individual.'**' He * A great outrage was committed on the person of M. Fauchet, when about to leave the country. He had embarked on board a small vessel at Nejv-York, for the purpose of going to Newport. This ves- sel, on her arrival in Newport harbour, was entered by an armed party from the Africa, o British man of war, then lying there ; and a forcible search made for M. Fauchet, and his papers. But, either having received intelligence that the jurisdiction of the country would be violated in his own person, or not choosing to trust himself so near a British armed vessel, he had taken the precaution to land at a small COKTtWTfON or 1800- WITH FRAlfCf!. S2\ eved a ry — 80 1 even )n was was, at roaches utilated cknow- ■oad or om the ents, in icknow- '83 ; — I jealous T in the ce ; and in most )f them ; to main- aw, and ^rnment, ic inter- heasured appear, guage of were of- istration * He Faucliet, [d a small JThis ves- In armed ; and a It, either [ry would If so near it a small was succeeded by M. Adet, who arrived in this country in the summer of '95. This minister was intrusted, by the committee of public safety, with a letter addressed to Con- gress ; he also brought with him the colours of the French Republic, which he was instructed to present to the United States, as a return for those offered to the National Con- vention by Mr. Monroe. The circumstance of his having brought a despatch addressed to Congress, instead of the ex- ecutive, the proper body, under the constitution, was a cause of offence and reproach with many. The letters, M. Fau- chet presented, under similar circumstances, had been refer- red, by a resolution of each house, to the executive, with a request that they might be answered. These proceedings were known to the committee of public safety, and answers to them had been received. A second minister, appearing with a letter addressed to the legislative department, it was considered, not only as an expression of censure on the Pre- sident, but as renewing an attempt, formerly practised, to produce jealousies between the branches of government; port ill the sound, with all his papers. No explanation having been made of this afluir, either by the British Vice Consul, (who knowingly transmitted an insulting letter from the British cnptuin to the govern- or of Rhode Island) or by Captain Howe, the commander of the Africa, the exequatur of the consul was withdrawn, and the vessel ordered to- leave tl»e waters of the United States. • M. Fuuchet, on his return to France, published, in 1797, a pamphlet, with this title, " Coup d'coil sur I'^tat actuel do nos rapports pulitiqucs avec les Etats Unis," &c. It is, of course, a vindication of the mea- sures of his own government, but written with moderation. He ad- mits that M. Genet was indiscreet, and t]iat the consuls exceeded tho limits of consular power. He attributes the prepossessions of Wash- ington against the French, to the death of the King, the persecution of his friend General la Fayette, and to the supposed confidential conferences of a M. Talon, an agent of Louis XVII., sent secretly to obtain ai«l for the royal government. We believe very little was ever heard of M. Talon ; but, according to M. Fauchet, he has the merit of suggesting to the President the celebrated questions respecting neu- " trality, on which he requested tlio opinion of his cabinet. M. Fau- chet, believed to be still living, was employed in many honourable stations by the imperial govcrunient. VOL. I. 41 322 CONVENTION Or 1800 WITH FRANCE. and as in the nature of an appeal from the decisions of aii administration, with which the National Convention were far from being satisfied. We do not regard it altogether in this light. The French government paid little attention to forms; great changes had suddenly taken place in that country ; and their own business, at home, was transacted in a singular and confused manner. Their construction of government, it was easy enough to understand. It consisted of a legisla- ture, called the National Convention, a body of a single branch ; and a sort of executive, denominated the Commit- tee of Public Safety. But the exact and respective authori- ty and power of these two bodies could not be comprehend- ed with the same facility. They were no where well defin- ed ; and the style of conducting public affairs, at that time, in France, did not admit either of much precision or regula- rity. The spirit of the age was against forms. The revo- lution, itself, had been principally directed against the artifi- cial arrangements of society, and it had done little else than destroy them. Mr. Monroe, the American minister, was, of course, addressed to the Committee of Public Safety ; but he was received in a full and public meeting of the National Convention, and the credentials of his office were delivered to the president of that body. We cannot, therefore, be surprised, if the French were neglectful of forms abroad, when thus indifferent to them at home. The American go- vernment was, moreover, a machine somewhat difficult to be comprehended, at the first blush, by a foreigner. The nice division of power into three parts must have confounded a Frenchman in those days, when the heated and ardent state of the public mind would, in his own country, have resolved them, with great rapidity, into one. Although M. Adet did not abandon the original grounds of complaint — of violation of neutrality, and of predilection shown to Great Britain, by this country, — his attention was principally occupied with the treaty, just then concluded by Mr. Jay. The government had the uncommon courtesy to put into the hands of his predecessor a copy of this instru- ment, obviously not for the purpose of soliciting remarks on CONTENTION OF 1800 WITH FRANCE. 323 I of anr 3re far in this forins; Y ; and ingular nent,it legisla- single ommit- luthori- rehend- II defin- at time, regula- te revo- le artifi- Ise than 5r, was, 5ty ; hut National [elivered fore, be abroad, ican go- dt to be he nice mdcd a nt state esolved ounds of liieetion ion was ided by rtesy to instru- arks on it, but to present him with exact information concerning the state of the relations of America with England ; and as a very forcible illustration of the extreme anxiety felt by the administration to maintain the utmost cordiality and confidence with France. M. Fauchet, having immediately left the country, it fell to the duty of M. Adet to go into a discussion of those principles of Mr. Jay's treaty, that, in his opinion, affected the rights, secured to his nation by the treaty of '78. We have already said, that the Na- tional Convention was exceedingly mortified, in failing to in- duce the American administration, either to furnish them aid and supplies secretly, or to enter into an open alliance. But the provisions of the treaty of November '94, awakened a deep feeling of indignation, and, eventually, of resentment. When information of its ratification was received in France, the Executive Directory resolved to suspend the functions of the French minister in the United States, to despatch a special envoy with instructions to complain of the infrac- tions of the treaty of alliance, and to express the deep dis- pleasure of the republic at the conduct of the American gov- ernment. From this harsh measure they were induced to recede by the representations of Mr. Monroe. But to that instrument may, immediately, be traced the unjust acts of the French government, that followed upon the ill success attending M. Adet's negotiation ; and the partial state of hos- tility that existed, a few months in 1799, between France and the United States. We shall give M. Adet's complaints in his own words. " Let the annnls of the French revolution be opened, let the minutes of that august sitting be seen, in which the National Con- vention received the minister of the United States into its bosom ; the addresses were not studied, they sprung from hearts full of affection for an allied people, they breathed the feelings which dictated them, and the American minister ibund himself in the midst of his friends. What joy did not the American flag inspire, when it waved, unfurled, in the French senate ? Tender tears trickled from each eye ; every one looked at it with amazement. There, said they, ia the symbol of the independence of our American 324 CONVENTION OF 1800 WITH FRANCE. brethren — behold there the pledge of their liberty ! may victory nlvvays attend it — may it lead to glory none but a free and happy people. These words, which escaped from a thousand mouths, were the expression of the sentiments of a whole nation. Was not an American, to each Frenchman, another Frenchman ? he was more — he was a friend, and that sacred name, amidst civil dissen- sions, was equally respected by all. What, then, was done by the government ? It put in question, whether it should execute the treaties to receive the agents of the rebel and proscribed princes. It made an insidious proclamation of neutrality ; by its chicaneries, it abandoned French privateers to its courts of justice. It eluded all the advances made by the republic, for renewing the treaties of commerce, upon a more favourable footing to both nations. It excused itself, on the most frivolous pretexts, — whilst it anticipated Great Britain, by soliciting a treaty, in which, prostituting its neu- trality, it sacrificed France to her enemies, — or, rather, looked upon her as obliterated from the map of the world — it forgot the services she had rendered it, and threw aside the duty of gratitude, as if ingratitude was an official duty. , " Alas ! time has not yet demolished the fortifications, with which the English roughened this country, nor those, the Ameri- cans raised for their defence ; their half rounded summits still ap- pear in every quarter, amidst plains, on the tops of mountains. The traveller need not search for the ditch which served to en- compass them ; it is still open under his feet. Scattered ruins of houses laid waste, which the fire had partly respected, in order to leave monuments of British fury, are still to be found. Alas ! the soldiers, who fell under the sword of the Britons, are not yet re- duced to dust — the labourer, in turning up his field, still draws from the bosom of the earth their whitened bones ; while the ploughman, with tears of tenderness and gratitude, still recollects, that his fields, now covered with rich harvests, have been moisten- ed with French blood. It was at this moment, their government made a treaty of amity with their ancient tyrant, the implacable enemy of their ancient ally. O ! Americans, covered with noble scars! O! you, who have so often flown to death and to victory, with French soldiers! you, who know those generous sentiments which distinguish the true warrior ! whose hearts have always vibrated with those of your companions in arms ! consult them to-day, to CONTENTION OF 1800 WITH FRANCE. 325 victory happy mouths, kVas not he was [ dissen- ; by the iute the princes, ^aneries, t eluded treaties ions. It ticipated ; its neu- ■, looked jrgot the jratitude, )ns, with le Ameri- s still ap- lountaius. ed to en- ruins of order to as ! the yet re- 1 draws lile the ecollccts, moisten- vernment placable th noble ory, with ts which vibrated O'day, to know what tliey experience ; recollect, at the sanae time, that, if magnanimous souls with liveliness resent an affront, they also know how to forget one. Let your government return to itself; and you will still tind, in Frenchmen, faithful friends, and generous allies."* Much of the correspondeDce of M. Adet is liable to the same objections, already made to that of M. Genet. It con- tained insinuations respecting the government, and appeals to the people entirely unjustifiable and misplaced in a foreign envoy. But an apology was found for it in the peculiar state of the times. The Directory were exceedingly dis- satisfied with the treaty made with England ; it precluded, for the present, the hope of an alliance with this country, and confirmed the system of neutrality adopted in 1793. The remonstrances of the French ministers, having had no effect on the government, the treaty having been duly ratifi- ed, and the necessary appropriations made to carry it into operation, France determined to show at once not only a seri- ous mark of its displeasure, but to strike an unexpected blow upon our commerce. In July '96 they decreed that notice shall, without delay, be given " to all neutral or allied powers, that the Flag of the French Republic will treat neu- tral vessels either as to confiscation, as to searches or capture, in the same manner as they shall suffer the English to treat them." This decree was a manifest violation of the treaty of '78. The commerce of the country had already suffered exceedingly from the French since the commencement of the war ; but it is not necessary to repeat here all the decrees, issued either in France or the West Indies, previous to the time Mr. Monroe left this country. The 16th article of the * We do not profess to be accountable for this translation. We publish the letter as we find it in the public papers of the year. The reader will perceive, that the warmth of the revolutionary style had not at all subsided, though the letter is not destitute of a certain de- scription of eloquence. In all the correspondence and state papers of the American government, during the revolution of this country, there is scarcely to be found a figure of speech, much less an inflammatory expression. The Declaration of Independence, written in the meridi- an heat of the day, is a model of simplicity and gravity. 326 CONVENTION OF 1800 WITH FRANCE. . i«;f May 9. A itti' Treaty was alternately violated and respected in the course of the year '93 no less than five times.'"' * 1793. Feb. 19. National Convention decreed that French colo- nies be opened to American vessels on the same terms as to national. — Vessels arriving from any ])art of the East Indies to unload in any port of the Republic. ' '. Neutral vessels, laden with provisions, bound to an enemy's port, should be brought in. May 28. This decree repealed as it respected American vessels. ,.,) May 28. Again enforced on certain conditions. July 1. Again repealed as on the 23d of May. July 27. Decree of May 9 again enforced. Nov. 18. Merchandise in neutral vessels, belonging to the enemy, liable to seizure, till French merchan- dise, similarly situated, shall be ejT'- ipted. Jan. 3. Decree of November repealed. March 2. Enemy's property on board neutral vessels again liable to capture. ,. ., Jan. 18. The cargo determined the character of the ves- sel. Vessels at sea, having merchandise from '-'■'"■ British ports, declared good prize. Vessels, ''-^'■*''- 'I having entered a British port, excluded from '; the French. { 1799. Oct. 29. Every person, a native of a neutral state, or one in amity with France, holding a commission .;,, ■,;,-, ., . from the enemies of France, or serving on , ^^ board their vessels, declared a pirate. Nov. 14. Decree of Oct. 29 suspended. ^ This is a brief summary of the decrees promulgated by the French government from 1793 to 1799, to whicli we shall add the decrees of French agents in the W. Indies. 1797. Feb. 1. Neutrals bound to all islands in possession of English, or defended by emigrants, liable to capture. Aug. 1. Horses declared contraband. Nov. 27. Vessels, going to or coming from British ports, subject to capture. The French ministry complained very much of the purchase of horses by the English for the West Indies. Horses are contraband of 1794. 1795. 1797. 1798. VA'/' 7* e course ench colo- n the same ving from jad in any I, bound to in. ' •> American ging to the I nierchan- ipted. issels again jf the ves- ndise from Vessels, uded from ate, or one ommisijion erving on e. the French 1 decrees of ^session of liable to |itish ports, irchase of itraband of CONTENTION OF 1800 WITH FRANCB. 327 T Charles Cotesworth Pinckney, of South Carolina, was appointed in 1796 Minister Plenipotentiary to France. He arrived in that country in December of the same year, and delivered Mr. Monroe the following letter from the Sec- retary of State. " General Pinckney will be the bearer of this letter. He is to succeed you as the Minister Plenipo- tentiary of the U. States with the French Republic. The claims of the American merchants on the French Republic are of great extent, and they are waiting the issue of them, through the public agents, with much impatience. Mr. Pinckney is particularly charged to look into this business, in which the serious interests and, in some cases nearly the whole fortunes of our citizens, are involved." Mr. Pinck- ney was known to be attached to the system of the adminis- tration ; and it was desirable their sentiments and wishes should be represented, at this period, with all the force and in the fullest relief possible. Mr. Monroe, who had been minister during the years '94, 5 and 6, on taking his leave of the Directoi;y, was addressed in the following terms, by the President. " By presenting this day to the Directory your letters of recall, you offer a strange spectacle to Europe. France, rich in her freedom, surrounded by the train of her victories, and strong in the esteem of her allies, will not stoop to calculate the consequences of the condescension of the American government to her ancient tyrants. The French Republic expects, however, that the successors of Penn, Raleigh and Columbus^ always proud of their liberty, will never forget that they owe it to France. They will weigh in their wisdom the magnanimous friendship of the French people with the crafty caresses of perfidious men, who meditate again to bring them under their former yoke. Assure the good people of America, Mr. Minister, that, like war. But the laws of nations do not forbid the purchase of contra- bands and their exportation from a neutral country. The only penal- ty attending the practice is their liability to capture. A great part of the trade was in contrabands. France had all the advantage of this traffic as well as the other belligerents. Horses were sent to the French, as well as the British Wusi India Inlands. 328 CONTENTIOir OF 1800 WITH TRANCE. them, we adore liberty ; that they will always possess our esteem, and find in the French people, that republican gene- rosity which knows how to grant peace as well as to cause its sovereignty to be respected. As for you, Mr. Minister, you have combatted the principles ; you have known the true interests of your country ; — depart with our regret ; — we restore in you a representative to America, and we pre* serve the remembrance of the citizen, whose personal quali- ties did honour to that title." .\t his return in '97, Mr. Monroe published an account of his mission, to which we take this opportunity to refer the reader.* Mr. Pinckncy was not received by the Directory. Very soon after his arrival in Paris, after, indeed, he had been presented in a private manner to the Minister of Foreign Affairs, notice was officially sent to Mr. Monroe, that the " Directory will not acknowledge nor receive another Min- ister Plenipotentiary from the United States till after the re- dress of the grievances demanded of the American govern- ment, and which the French Republic has a right to expect from it." The American minister was, also, informed by M. Giraudet, chief secretary in the Department of Foreign Affairs, that the minister at the head of that department could have no direct official communication, as the Directory had determined not to acknowledge him. He signified to Mr. Pinckney at the same time, that there was a law, which for- bid foreigners remaining in Paris without the permission of the Directory ; and, as it was their intention not to grant this indulgence to Mr. Pinckney, the law would be suffered to have its operation ; and that he would be under the ne- cessity of quitting the territories of the Republic as well as Paris, though the time had not yet been designated by the Directory. M. Giraudet intimated, that a communication would probably be made to him on this head by the minis- * A view of the conduct of tlic Executive in the foreign affairs of the United States as connected with tlie mission to the French Repub- lic in tlie years 1794, 5,6, l)y James Monroe, Minister Plenipotentiary, &c. CONVENTION OF 1800 WITH FRANCE. 329 less our n gene- :ause its ter, you he true t ; — we KB pre* al quali- J7, Mr. liich we Very ad been Foreign that the [jer Min- T the re- I govern- :o expect rmed by Foreign lent could tory had to Mr. hich for- ission of to grant suffered the ne- I well as by the nieatioB e minis< affuirs of th Repub- loteatiaiy, ter of Police, as the business fell into the department of that officer. This affair, conducted *n an unaccountable manner, could not be regarded with much complacency by the American envoy. The minister of foreign affairs was well acquainted with the capacity in which Mr. Pinckney came to France ; nor could the Directory be ignorant of the pub- lic character with which he was invested, for his arrival had been officially notified to M. de la Croix. He had waited upon that gentleman by appointment with his predecessor Mr. Monroe, who had received his letters of recall, and on that occasion presented an ofRcial copy of his letters of cre- dence to the minister, who promised to lay them before the Directory. Two days after this audience, M. de la Croix wrote to Mr. Monroe, and informed him, that he had laid before the Directory a copy both of the letters of recall and credence. The public character of Mr. Pinckney was, therefore, properly and fully known to the executive gov- ernment of France. In this view of the subject he was en- titled to the protection of the laws of nations, and whether he was received or not by the Directory, could not at all alter his official character. The Directory were not obliged to acknowledge him, or any other minister from tht United States, but, when it was once ascertained that Mr. Pinckney was a public envoy of a foreign country, and not a sintple stranger or traveller in France, he was far, indeed, from being a fit subject for the minister of police. That officer could have thrown him into prison, and his letters of cre- dence, as a diplomatic envoy, would have availed him noth- ing, for the minister of police had nothing to do with papers of that description ; — the Directory could have ordered (^as they afterwards did) Mr. Pinckney to quit the territories of France ; — that is a municipal authority, every government is fully competent to exercise. Rut, whether France was at war or at peace with the United States, they could not, with- out a gross violr.tion of the laws of nations, have refused to the minister letters of safe conduct nnd paS!?j)orts, both to protect him in their country, and to enable him to leave it in safety. Public ministers or agents form a distinct class VOL. 1. 11 I 330 CONVENTION OF 1800 WITH FRANCE. from common travellers or strangers ; — they are protected by a diflerent description of law ; — their persons are invio- late, and they can be punished only by their own govern- ments. The necessity and advantages of intercourse among civilized nations have created this order of men in society, an exception to all the general rules that govern states. The immediate, professed cause of irritation was the British Treaty, concluded by Mr. Jay, and, though the French may have had no special right to complain of that act, their angry and loud representations, in regard to the treaty of 1778, were, by no means, either without excuse or foundation. " In vain have British agents," said the minister o( justice in April 1797, '< surprised a people, to whose liberty we hav ^ .. v ;, . . . S34 CONVENTION OF 1800 WITH FRANCE. France ; nnd in respect to provisions iind other nrticles, not uiiinlljr deemed contraband, yon are to Rgree only on n temporary com* promise, lilce tiiat in the t8th article of the British treaty, nnd of the same duration. If, however, in order to satisfy France, now $he is at war^ we change the two important articles hefore mention- ed, then the 14th article of the French treaty, which suljects the property of the neutral nation, found on board enemies^ ships, to capture and condemnation, must of course be abolished. — Great Britain has often claimed a right, and practised u|)on it, to prohibit neutral nations carrying on a commerce with her enemies, which has not been allowed in lime of pence. On this hcnd, it will be desirable, to come to an explicit understanding with France, and, if possible, to obviate the claim by an express stipulation. ^' Such extensive depredations have been committed on the com* merce of neutrals, and especially of the United Slates, by .he citi- zens of France, under pretence 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 a 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: especially, that the vessels of the neutral nation shall never be captured, 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, ac- cording to the known rule of the law of nations. And it may be expedient to define a blockaded place or port to be one, actually invested by land, or naval forces or both, and that no declaration of a blockade shall have any effect without such actual investment. ^As a substitute for the reciprocal guaranty may be proposed a mutual renunciation of the same territories and possesions, that were subjects of the guaranty, and renunciation in the sixth and eleventh articles of the treaty of alliance. Such a renunciation, on our part, would obviate the reason assigned in the instruction to M. Genet, before cited, of future danger from the rapidly growing power of the United States. But if France insists on the mutual guaranty, 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 guaranty; of course the casus foederis can never occur except in a defensive war. The nature of coMVBNTioir or 1800 with mANca. 335 this obligfRtion is understood to be, that when n wnr, really and truly dffen$ive^ cxiMtt, the engiiging nntion i» bound to furnish an effectual and aJeifiiate ilcjcnce in coopcrnlion with the power attack- ed: ^vhencc It follows, that the niitionr/ia^ bo required in some cir- cum^tnnccH to bring forwaril Un whole tbrcc. — On the part of the United Stntc!^, Instead of troops ur ships of war, it will be convenient to stipulate lor a modernle stim of money, or quantity of provisionSf nt the option of France. The provinioHS tu bo delivered at our own porta in any future defensive wars. The sum uf money, or its value in provisions, ought not to exceed two hundred thousand dol- lars a year during any such wars. The reciprocal stipulation, on the part of Franco, may be to furnish annually the like sum of money, or an equivalent in military stores, and clothing for troops, at the option of the United States, to he delivered in the ports of France. Particular caution, however, must be used in discus! time in e iropnr- ivourable lies. J not very resulted, mmission- recoDcile bound to oluminous iccount be e manoeu- 3, charged from the to gather credit, and rs appears 1, as a fo- I obtaining lOst active) e had with know the , whoever t, that he le far from ns of pre- most insig- Isuits their has made ^g avowed, it to know obtained |he proper :e fo reign- to them- selves by hastening to quit the territory of the Republic. One of these letters, Z. designates a Frenchman, who hastened to declare himself. The language, he held, is irreproachable. He is present- ed, as having sometimes served as Interpreter ; but it is clearly seen that he interpreted none but honourable propositions. " As to the foreigners, who are seen 6guring in this negotiation, it appears, that the object of their whole intrigue was, to obtain from the Americans a sum of 1,200,000 livres to be distributed for corrupt purposes. " Hence begin and end all the bustle, all the conversations, all the proceedings, minutely detailed in the Report of the envoys. " It will be forever inconceivable, that men, authorized to repre- sent the United States near the French Republic, could have been for an instant deceived by manoeuvres, so evidently counterfeit, and that there should exist a temptation to convert the error in this respect into bad fa^.ii. " What ! Three men are sent envoys from America to France, to negotiate there a reconciliation between the two Republics ; embarrassed in a preliminary matter, they cannot, at once, confer with the minister as commissioners, but have a thousand ways of seeing him as individuals, either at his own house or elsewhere ; and two of them constantly refuse all the facilities which are o£fer-r ed to them. — " Here it is a lady, known to be connected with Mr. Pinckney, who holds with him the most innocent discourse, which has been repeated to him from one end of France to the other ; — lend us (said she f o him one day) money in our war, we lent it to you in your^s ; and a conversation, thus simple, is taken up by Mr. Pinck* ney, »,vho finds it necessary to write every thing, and to poison every thing ; — it is, mysteriously, sent by him to his government, as if it had any relation to the clandestine propositions made by the intriguers ; — thus minute is distrust ! Thus is prejudice led astray in its reasonings ! In this manner are the politics of some men a pest to social intercourse. " There is one W., whom we have not succeeded in discovering, who introduces to General Pinckney one X., a very hasty fellow, who says he is charged with a message from the mini *er, who, being soon afterwards pressed to answer, whether he is personally known to him, is forced to say, no ; but that he has the proposi- 340 CONVENTION OP 1800 WITH FRANCE. tioM, which he made from Y., who, he says, has connexions with the minister, and, nevertheless, when they want to intrust Y. with the negative answer to his proposition for the 1,200,000 livres, he declines being charged with it, and is compelled to avow, through a kind of shame, and at the risk of discrediting the part he was playing, that the proposition did not come from the directory, nor even from the minister, and that it came solely from him, Y., who was desirous of saving the envoys the mortification of the disa- vowals. — ^^ In one word, they flattered themselves with exciting indig- nation, instead of pity. They wish for war, and they wished that insulted France might declare it against a people, whose cause she defended, and that it might be restored by her to the arms of England. '^ By that war, the British cabinet would gain an ally, who would labour for its interests, second its projects upon the French and Spanish colonies, and retard the moment of its humiliation : by that war too, the British government would accelerate the e.\ecution of a favourite plan of which it has never lost sight. " It is known that, since it despaired of reuniting to the triple crown the States, whose independence it was obliged to acknow- ledge, it aspireJ, at least, to prejudice them in favour of limited monarchy ; that it endeavoured to fortify by the similarity of con- stitutional forms, the habits, common to the English and American people, and that it took care to keep for a long time one of the sons of George III. in the vicinity of the United States. Can it then be true that, to the disgrace of the human mind, many citizens of the United States should be found, who are seriously reconciled to the English form of government ? Can it then be true, that men, called by the public confidence to the head of the government of the United States, have written in favour of the British constitu- tion, merely to prepare its adoption in their own country ? Can it be true, that a thirst for honours, greediness of wealth, and a desire of perpetuating power hi'.ve already ripened this conspiracy against liberty ?'* An intercourse of the singular sort, already mentioned, was continued till the end of October, at which time the commissioners determined not to receive any more proposi- CONTSNTION OF 1800 WITH FRANCE. 341 ns with Y. with irres, he through he was ory, nor Y., who lie disa- ig indig- hed that ause she arms of ho would inch and : hy that culion of lie triple acknow- f limited y of con- Vmerican le of the Can It r citizens iconcilcd hat men, iment of constitu- l Can it a desire )' against itioned, lime the )roposi- tions from individuals, who bore no acknowledged authority to treat with them. The terms, also, they never could have accepted, for nothing in their instructions allowed them to offer a loan to the Directory. No otficial communication of any kind having been held with them since their arrival in Paris, although nearly six weeks had elapsed, they address- ed a letter on the 1 1th of November to the Minister of For- eign Relations, from which the following is an extract : " Citizen Minister — The undersigned, envoys extraordinary and ministers plenipotentiary of the United States of America to the French republic, had the honour of announcing to you othcially, on the sixth of October, their arrival at Paris, and of presenting to you, on the eighth, a copy of their letters of credence. Your decla- ration at that time, that a report on American affairs was then pre* paring, and would in a few days be laid before the Directory, whose decision thereon should without delay be made known, has hitherto imposed silence on them. For this communication they have waited with that anxious solicitude, which so interesting an event would not fail to excite, and with that respect, which is due to the government of France. They hr.ve not yet received it, and so much time has been permitted to elapse, so critical is the situa- tion of many of their countrymen, and so embarrassing is that of the undersigned, both as it respects themselves, and the govern- ment they represent, that they can no longer dispense with the duty of s'^liciting your attention *o their mission." ,r . ^ , No answer was given to this letter ; but attempts were repeatedly made to engage the envoys in private and unoffi- cial negotiations. They were promptly and decidedly de- clined. The disposition of the French government still con- tinued unfavourable. The envoys remained in Paris, as pri- vate citizens, under the protection of a law extended to the natives of all countries, with whom France was at peace. The Directory had not acknowledged them in any shape, and, though copies of their full powers, and letters of cre- dence, had been taken by the Minister of Foreign Affairs, they had never been accredited, — a situation in every way awkward, embarrassing and mortifying. Four months were passed in this manner. They had been of no service to :• 342 CONTENTIOK OF 1800 WITH FRAWCX. their country, and it was doubtful, whether a position, so ex- ceedingly degrading, would be viewed with complacency by their own government. But the mortifications to which they submitted, ought not to be mentioned, hereafter, to their discredit ; for they endured them from patriotic and praise- worthy motives. They were well aware that peace was roost important to the American people and government— not only peace, but a solid and sincere friendship with France. The Directory, the government during that period in France, was not impressed with a single feature of solidity or permanency, and there was nothing in its structure that promised to be more lasting than the forms, which had pre- ceded it. They were all governments created for the exi- gencies of the moment, and they gave way as soon as the times required greater concentration of power. This had been the progress of the revolution. The Directory, with its council of 500, built out of the ruins of the National Convention, sunk before the more arbitrary and despotic form of the consular government. The ISth Brumaire, as it is now termed in history, overthrew the Directory, dis- persed the remnants of all the other political institutions, which had existed in France since the abolition of royalty, and created the first permanent government, with which fo- reign nations could treat in safety and with confidence. The 18th Fructidor produced the Directory. But the 18th Bru- maire introduced the consular fasces, and with them, as in old Rome, the imperial eagle. This last epoch laid the foun- dation, since the year '91, of the fifth constitution in France. The confusion and irregularity which prevailed, afforded a convincing proof that the French government possessed nei- ther power at home nor consideration abroad. Their diplo- matic relations were interrupted ; — few of the old govern- ments of Europe had acknowledged the Directory, and those that had done it, had been compelled to that step by the suc- cesses of the French armies. The revolution was truly in nearly as rapid a progress in '98 and '99 as in '89 and '90. The rulers for the moment, and foreign governments, were fully sensible of this juncture of affairs. The first were, CONVENTION OF 1800 WITH FRANCE. 343 , 80 ex- 5ncy by ich they to their praise- ice was iroent— France, cried in solidity ;ure that lad pre- the exi- in as the 'his had ►ry, with National despotic naire, as Dry, dis- titutions, royalty, hich fo- te. The 8th Bru- ro, as in the foun- France. Iforded a }sed nei- jir diplo- govern- Ind those the sue- truly in land »90. [ts, were )t were, iv' therefore, less indifferent to the means by which they obtain- ed wealth or power ; — they were not moved by feelings of respect for other states, nor inspired with notions of great and permanent policy ; — they considered, very justly, their own condition extremely precarious, for the dismal experi- ence of their predecessors, full of warnings, was fresh before their eyes. In the beginning of the revolution the most vi- olent men prevailed ; towards the end, the most corrupt. Rulers, who do not hope that their power, much less their system, will be prolonged, cannot be expected to enter deep- ly into the intricacies of foreign negotiations. The perpetu- al danger and vacillations of such a government destroy all interest, that men would naturally take in its success. A course of measures, exceedingly reprehensible, and requiring immediate explanation in other cases, would be passed over without attention in a country, where their most important domestic affairs were conducted in a confused and irregular manner, and where changes and revolutions were constantly dreaded. Nor can the foreign agent expect that the usual diplomatic forms will be observed towards him, when the persons at the head of affairs betray an absence of all the es- sential attributes of sovereignty. " I have, also, repeatedly called the minister's attention to the obnoxious acts of the late assembly, and to their proposition of a new commercial treaty. He has replied very candidly, that, for himself, he should be glad to settle every thing to my satisfaction, but that his ministerial existence is too precarious to undertake any extensive plan ; that the attention of the government is turned too strongly towards itself to think of its exterior re- lations ; and that the assembly, at open war with the execu- tive, would certainly now reject whatever should be present- ed to them."* We do not make these remarks as a justifi- cation of the French government, for they were never at the trouble of, even, acknowledging the American ministers. But they will, in some sort, account for the great degree of patience and resolution, with which the envoys endured the * Extract from letter of 3Ir, JMonis, July 10, 1792. = -^^ - if d44 CONVENTION OF 1800 WITH FRANCS. neglect of the Directory. They were, besides, intrusted with a special mission ; it was, therefore, their duty to re- main till they were satisfied of the impossibilitv of accom- plishing the objects for which they had been sent. We find Ihem still at Paris in the beginning of the next year, so far, indeed, from having passed through the first steps of a nego- tiation, that the determination of not even receiving them, appeared more deeply fixed every day in the mind of the Directory. Having done every thing that the great principles of the administration at home, and the special objects of their mis- sion required from them in its fullest latitude, they resolved, towards the end of January '98, to address a final letter to the Minister of Foreign Relations. This letter, a very long one, examined, in an able manner, the whole unfortunate controversy that existed between the two governments, and concluded with these expressions : " Three citizens ofthe United States have been deputed, as en- voys extraordinary and ministers plenipotentiary to the French re- public. Their instructions authorize and direct them to review the existing treaties between the two nations, and to remove by all proper means the inequalities, which have grown out ofthe stipu- lations of those treaties, in consequence of the refusal of England to adopt the principles they contain. Bringing fvith them the tem- per of their government and country, searching only for the nieans of effecting the objects of their mission, they have permitted no personal considerations to influence their conduct, but have waited under circumstances, beyond measure embarrassing and unpleasant, with that respect the American government has so uniformly paid to that of France, for permission to lay before you, citizen minis- ter, these important communications, with which they have been charged. Perceiving no probability of being allowed to enter in the usual forms on those discussions, which might tend to restore harmony between the two republics, they have deemed it most advisable, even under the circumstances of informality, which at- tend the measure, to address your government through you, this candid review of the conduct, and this true representation of the sentiments and wishes, of the government of the United States. CONVENTION OF 1800 WITH FRANCE. 345 rusted to re- iccom- ^e find so far, I nego- ; them, of the of the Bir mis- jsolved, 3tter to sry long )rtunate nts, and ■I id, as en- re nch re- [> review ove by all |the stipu- England the tem- he means nitted no re waited ipleasant, •only paid en minis- ave been enter in restore it most Iwhich at- you, this m of the id States. They pray that it may be received in the temper, with which it is written, and considered as an additional effort, growing out of a disposition, common to the government and people of America, to cultivate and rf^store, if it be possible, harmony between the two republics. If, citizen minister, there remains a hope that these desirable objects can be efl'ected by any means, which the United States have authorized, the undersigned will still solicit, and will still respectfully attend the development of tliose means. If, on the contrary, no such hope remains, they have only to pray, that their return to thei"* own country may be facilitated, and they will leave France with the deep felt regret, that neither the real and sincere friendship, which the government of the United States has so uniformly and unequivocally displayed for this great republic, nor its continued efforts to demonstrate the purity of its conduct and intentions, can protect its citizens, or preserve them from the calamities, which they have sought, by a just and upright coQduct, to avert." . To this communication, M. de Talleyrand made an elabo- rate and detailed answer on the 18th of March following. He informed the commissioners he had laid their letter be- fore the Directory, and it was by their instruction, that he at that time replied to it. In the course of the letter, he ad- dressed them by the title of the commissioners and envoys extraordinary of the United States. We shall not recapitu- late the facts or arguments of this communication, as they are but a repetition of the remarks and sentiments of the French ministers in America. But in it is disclosed, for the first time, an arrangement, which, we believe, is altogether novel in diplomacy. IVl. de Talleyrand declares plainly, that the Directory prefer to treat with one only of the envoys, as the opinions of the others preclude that mutual confidence, indispensable to negotiation. America, certainly, intrusted to these three commissioners, men, upon whose abilities and integrity she relied, the power, jointly or severally, to con- clude a treaty with France. But she never intended to the right and privilege of concede to a foreign government selecting such of the envoys, as might be thought most pro- per for the purpose of conducting the negotiation. Nor can VOL. I. 44 n i;. 346 CONVENTION OF 1800 WITH FRANCE. ';< it be considered, under any circumstances, very decorous to allude to the political sentiments of foreign ministers. Em- ployed for the purpose of representing the views of a go- vernment, their own private opinions cannot well be brought into notice ; for, as ministers at a foreign court, they, in re- ality, possess no private character. They are the represen- tatives of a nation, and to complain of the political sentiments of these men, is, in other words, to complain of the political sentiments of the nation itself. We shall now quote the ex- pressions of M. de Talleyrand. The reader will observe, that they are not characterized by much regard, either for the American government, or its envoys : ^' It is finally wished to seize the first favourable occasion to con- summate an intimate union with a "power, (England) towards >Thich a devotion and partiality is professed, which has long been the principle of the conduct of the Federal Government. The inten- tions, which the undersigned here attributes to the government of the United States, are so little disguised, that nothing seems to have been neglected at Philadelphia to manifest them to every eye. It is probably with this view that it was thought proper to send to the French republic, persons, whose opinions and connexions are too well known to hope from them dispositions, sincerely conciliatory. It is, therefore, only in order to smooth the way to discussion, that the undersigned has entered into the preceding explanations. It is with the same view, that he declares to the commissioners and en- voys extraordinary, that notwithstanding the kind of prejudice, which has been entertained with respect to them, the Executive Directory is disposed to treat with that one of the three, whose opinions, presumed to be more impartial, promise, in the course of the explanations, more of that reciprocal coniidence, which is in- dispensable.^' A proper and dignified reply, sij^ned by all the commis- sioners, was made to this extraordinary intimation ; though it was, April 3, '98, followed by a communication, addressed to Mr. Gerry alone, in these words : — " I suppose, Sir, that Messrs. Pinckney and Marshall have thought it useful and proper, in consequence of the intimations given in the end of my note of the 28th Vcntosc last, and the obstacle, which ffM CONTKNTION OF 1800 WITH FRANCE. S47 >rous to . Ein- of a go- brought r, in re- jpresen- ntiment8 political ! the ex- observe, ither for 3n to con- rds \Thich been the he inten- rnment of la to have r eye. It end to the s are too iciliatory. 3sion, that ons. It is rs and en- irejudice, .xecutive 36, whose course of ich is in- commis- though ddressed e thought ■en in the c, which their known opinions have interposed to the desired rcconcilinlion, to quit the territory of the repuMic. On this supposition, I have the honour to point out to you the 5tli or the 7lh of tliis decade to resume our reciprocal communications upon the interests of the French republic and the United States of America." The necessary passports and letters of safe conduct were shortly after sent to Mr. Marshall and Mr. Pinckney. The former gentleman embarked without delay for the United Slates ; but Mr. Pinckney, on account of the alarming ill- ness of his daughter, was permitted to remain a few months. This special and extraordinary mission here properly ter- minated. Although a joint or several power was bestowed on the commissioners, the interpretation they had put on their instructions forbade them to act separately. The ob- ject of the Directory could not be mistaken in omitting to send passports to Mr. Gerry ; it was to detach him from his colleagues, and to induce him to enter into a separate nego- tiation. Whatever may be thought of the propriety of Mr. Gerry's remaining in France after the departure of the other members of the commission, or of his neglecting perempto- rily to demand his passports, it appears that he did not take that step for the purpose of undertaking a discussion of the disputed topics, nor did he conceive that, separate from his colleagues, he was invested with any power to treat. We have his own words in support of this opinion, in answer to the letter of M. Talleyrand of April 3d, written the next day : — " You have proposed, citizen minister, the Tjth or 7th of this decade for me to resume (reprendre) our reciprocal communica- tions upon the interests of the French republic and of the United States. The reciprocal communications, which we have had, were such only as 1 have alluded to in the beginning of this letter, unless your proposition, accompanied with an injunction of secrecy for me to treat separately, is considered in this light. To resume this subject will be unavailing, because the measure, for the reasons which I then urged, is utterly impracticable. 1 can only then con- fer informally and unaccredited on any subject respecting our mis- sion and communicate to the government of the United States the 348 CONVENTION OF 1800 WITH FRANCK. ..H result of such conferences, being in my individual capacity unau- thorised to give them an oilicial stamp/' Mr. Gerry stated to the American government, that he did not leave Paris with his colleague, because the Minister of Foreign Relations had assured him, that event would be followed by an immediate declaration of war on the part of France. We are not aware that the certain occurrence of that state of things altered at all his position. The Com- mission had agreed that no one of the members could treat ; nor any two withdraw while a possibility of negotiation re- mained. When Messrs. Pinckncy and Marshall received their passports, Mr. Gcny informed the minister that ho could not renew any discussions ofHcially, for ho was no longer a minister. And in a private letter to the President about this time, he complains very much of the situation in which he was placed, of having " brought himself into a predicament in order to support his (Mr. Adams') adminis- tration." Neither of the three ministers had ever been ac- credited ; — two had been ordered to leave France, and the third declared, that the circumstance reduced him to the situation of a private person. We are at a loss, therefore, to conceive how the departure of the third envoy could have led to a declaration of war, particularly as Mr. Gerry did shortly after, on receiving the letter of recall of March 23, addressed to all the envoys, demand his passport and in the course of the summer, as soon, indeed, as he could get away, did actually leave France. If war had been declared, none of the blame of it could have been imputed to either of the envoys. France would have declared it upon her own responsibility, and after her treatment of Mr. Pinckney during his embassy in '96, and .igain, of the commissioners in '97 and 98, it seems unmeaning in her government to make this event depend upon a step entirely immaterial in every point of view. Mr. Gerry, himself, has made some just remarks on this subject in his letter of July 1st to M. Talleyrand: — "' " It is inconceivable to me, that, being withoui powers to negotiate^ CONTENTION OF 1800 WITH FRANCE. 349 y unau* hat he [inister uld be part of 3nce of i Cotn- 1 treat ; tion re- ■eceived that ho was no 'resident iation in f into a adminis- been ac- and the n to the herefore, uld have erry did arch 23, id in the ould get eclared, either of Iher own inckney issioners ment to terial in Ide some St to M. negotiate^ my return to the United States, nfter such long notice can be sup- posed in any degree to close the door to subsequent steps for a re- conciliation. The door has always been, ond still is open on the part of the government of the United States. It is impossible for any government to exceed it, in the moderation and justice of its measures towards France, or in its perseverance and patience to execute them ; but it having failed in two attempts, will not France make one elTort to obtain a reconciliation between tlic two repub- lics? Consider the disitgrccnblc predicament in which the govern- ment of the United States has been involuntarily jilaccd, and it is conceived you cannot fail to see tlie propriety and policy of this 1? measure. M. de Talleyrand was at great pains to induce Mr. Gerry to remain ; after the departure of tiie other commissioners he addressed several letters to him, soliciting him with uncom- mon eagerness to renew the discussions ; an invitation which, we imagine, Mr. Gerry did not consider of a complimentary nature. In one of his last communications M. de Talleyrand writes, " I therefore urge you more pressingly than ever, while 1 refer to what I have already written on the subject, to postpone your departure and to attend quickly to the dis- cussions, which I shall present. I will add that in the situa- tion, in which you stand, it is contrary to all usage to depart without giving notice, that you have received an order to that effect. That the usage, on the contrary, is, when a doubt is raised as to the full power, for the envoy to wait the decision of his government." The American commissioner could not have been much pleased with this attempt to separate him from his colleagues, and to propose negotiations to one of the ministers, which had not only been denied to the whole com- mission, but had actually been withheld, till a majority of them were virtually expelled from the territories of the Re- public. A proposition on the fourth of February had been made, that Mr. Gerry should treat separately. This was declined. The envoy remained at Paris without an otHcial character, waiting to receive the instructions of his government. He appears, to have been persuaded that the Directory in reali- 350 CONVENTION OF 1800 WITH FRANCE. ty were desirous of peace, and that in communications of an informal nature he should be able to arrange the outline of a treaty. This had originally been a part of one of the plans proposed to Talleyrand by the commission, but it was not at the time acceptable to the minister. In the beginning of May, Mr. Gerry received the letter of the Secretary of State of March 23d, addressed to the commissioners, directing them to apply for passports, unless certain conditions, speci- fied in the letter, were complied with by the French govern- ment. Shortly after, he demanded his passport, but, not- withstanding repeated applications, both verbal and written, he did not succeed in leaving Paris till the latter part of July. We know not how to explain the conduct of the Directory, unless, indeed, it entertained the expectation that the Ameri- can people would assist it in demolishing the administration ; an error very likely to arise where the freedom of the press is so unlimited, and where the popular voice is so con- stantly and forcibly expressed. Foreign nations have consid- ered administrations at the last gasp, the union even in jeopardy, and one portion of tlie people claiming their aid as allies, when, in truth, it waj only an exceedingly violent state of party feeling, vastly heightened by mutual recrimi- nation. Parties have contended in this country with a warmth, often to be deplored, but these contentions have never had f jr their object the life of the confederacy. They turned entirely on the course of policy pursued by the ad- ministration of the day ; and, as this policy was unavoidably much controlled by the measures of the two great bellige- rents, one of the parties was necessarily the advocates of the acts of a foreign government. This circumstance certainly deceived France at the time, of which we are now speaking, and at a subsequent period. Great Britain. Those govern- ments mistook the parties that, at different epochs, vindicat- ed their measures, as their allies in this country ; though, in truth, they were but opponents of each other. The Direc- tory, it is quite evident, calculated with confidence, not only upon a party in America, but upon an alliance with the Anierican people. The reception of M. Genet and the re- CONVENTION OF 1800 WITH TRANCE. 351 IS of an ine of a e plans 9 not at ning of 3f State irecting t, speci- govern- ut, not- written, of July, rectory, Ameri- .tration ; of the so con- I consi el- even in ir aid as violent recrimi- with a IS have They the ad- 'oidably jellige- of the rtainly )eaking, govern- ndicat- ugh, in Direc- lot only kith the the re- presentations of the French ministers would very easily have produced that expectation and belief. The enticing principles of their revolution gained as many victories as the brilliant valour of their armies; — in all the countries they marched to conquer, they found allies. And if there was a popular party (literally speaking) in Italy, in Germany, in the Low Countries, we cannot be surprized that the Direc- tory should expect to find one in America. Most undoubt- edly they would not have been disappointed in this expecta- tion, if the American people had not always been accustomed to liberty, to a representative government, practically very free, and latterly to popular institutions, carried to an ex- treme limit. It has often been remarked that the aristocra- cy of England, (the great number of men of rank and property united with vigorous minds and a careful education) saved that country from the propagation of the revolutionary principles of France. The democracy of America had the same effect here. The first sensation produced by the revo- lution was a very alarming one, but the country soon recov- ered from the intoxication of the times. The chalice con- tained nothing, the people did not already possess, and this was perfectly obvious because the n)eaniiig and value of liberty were well understood. The imaginations of the citi- zens were not tainted or inflamed ; for they had got to that state, where freedom and independence were not an affair either of romance or sentiment, but of daily use and practi- cal application. The nation was, tlierefore, soon unavoida- bly thrown into the situation of a spectator of the struggles of other countries for freedom.* * It cannot with truth be said, that the ohjcct of the Directory pre- vailed in this) business. Tiie ndniinistration was dcniolislicd, but wc lielieve the French war had little to do with that event. Peace was made before the second canvass for the election of President, and the change of politics is to be attributed altoj^ether to domestic causes. Parties were at that time settling themselves, and the crisis just then took place. We have said in tlte text that the division of pai ties was produced by the course of measures of the adniinirftralion of the day. This remark may be misuncierstood without a word of e.xplauation. 353 CONVENTION OF 1800 WITH FRANCE. The Directory were in the habit of ordering foreign minis- ters to quit the French territories, and of violating in their persons the necessary and well established usages of nations. Most of the govornments of the continent of Europe found it necessary to submit to these indignities; for they feared their own people quite as much as the French armies. Rea- soning from the same causes the Directory applied the same sj'stem to the United States; — they commenced it with Mr. Pinckney ; — he was ordered to leave France. On ordinary occasions, this measure would have provoked a war or would have required explanations. Neither step was taken by America. The government viewed with a proper degree of indignation this outrage upon its dignity, but it was neither dismayed nor irritated. It desired peace, and very justly attributed the violence of the Directory to the peculiar junc- ture of aflairs in France rather than to any settled animosity in the French people. Without delay, another special and extraordinary mission was appointed and sent to Paris. This mission was, also, ordered to leave the French territories. Thus in twelve months the Directory had twice suspended, in an intemperate and unusual manner, all diplomatic inter- course between France and the United States. Even if the prospect of peace had not been hopeless, enough had been done by America to accomplish that most desirable object. The government resolved then upon war, it is true, rather of a defensive than an offensive kind. They adopted various war meap"res, which we shall not recite, as they do not be- long to v ; ork. The treaty of '78 was declared no longer obligatory on the United States, though it may Ut well doubt- ed whether one government has power to dissolve a contract The true party line was drawn by tlie clifTercnt morios, in which men construetl the constitution. Tiiis is the orir, within [, or suck the nth rving for Iwhere it [ration to CONVENTION OF 1800 WITH FRANCE. 359 An inetfectual and tedious discussion was terminated by the convention signed on the 30th of September. •' " This will sfo by my colleagues, Mr. Ellswoi h and Mr. Davie, who probably will leave Paris in two days. They will inform you of the whole history of the negotiation, which terminated last night in the signature of a provisional treaty of amity and com- merce. We are all profoundly convinced that, considering the re- lations of the two countries politically, the nature of our demands, the present state of France, and the state of things in Europe, it was Tor our duty and for the honour and interest of the govern- ment and people of the United States, that we should agree to that treaty, rather than make none."* * " Art. 2. The ministers plenipotentiary of the two parties not be- ing able to agree at present respecting the treaty of aliianct? of 6tli February 1778, tlie treaty of amity and cuinmerce of the same date, and the convention of 14th of Novendjer J788, nor upon the indemni- ties mutually due or claimed ; the parties will negotiate further on those subjects at 8. convenient time, and until tiicy may have agreed upon these points, the said treaties and convention shall have no ope- ration, and the relations of the two countries shall be regulated as follows : " Art. 3. The public ships which have been taken on one part and the other, or wiiich may be taken before the exchange of ratifications, shall be restored. " Art. 4. Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contra- band goods destined to an enemy's port excepted) shall be mutually restored. This article shall take eflect from the date of the signature of the present convention. And if, from the date of the said signa- ture, any property shall be condemned contrary to the intent of the said convention, before the knowledge of this sti|>ulation shall be ob- tained, the property so condemned shall without delay be restored or paid for. " Art. 5. The debts contracted by one of the two nations with in- dividuals of the other, or by the individuals of one with the individu- als of the other, shall be paid, or the payment may be prosecuted in the same manner as if there had been no misunderstanding between the two states. But this clause slinil not extend to indemnities claim- ed on account of captures or confiscations. " Art. 6. Commerce between the parties shall be free. The ves- sels of the two nations and their privateers, as well as their prizes, 360 CONVENTION OF 1800 WITH FRANCE. This convention was ratified, with an exception, by (ho United States, February 18th, 1801, and the ratification accepted by the First Consul July 31, 1801. This excep- shall lie trcntod in tlioir rcspectivo j)()rls ns tlioso of the nation the most favoiirrd ; and, in gcuoral, tlio two partirs sliall enjoy in tlio ports of oacli otiior, in rc^rard to coinnicrcc and navigation, the privi- leges of the most favoured nation. " Art. 7. Citizens of eacli country, to enjoy in that of the other the rights of devise, donation, and of inheritance, &c. without natiu-ali/n- tion. " Art. 8. In case of war hctwceu the parties, six months allowed for removing property, &c. " Art. {). Dehts, &c. not to !)o secpiestered nor confiscated in the event of war. " Art, 10. Commercial agents maybe reciprocally appointed, to re- side in the United States and in Franco. Conunercial agents not to exercise their fnnctions until they are recognised by government. " Art. Jj. The citizens of the United States and France, to pay re- ciprocally, no higher duties than nations the most favoured. " Art. V2. It shall be lawfnl for tlie citizens of either country to sail with their ships antl merchandise (contraband goods always ex- cepted) from any j»ort whatever, to any port of the enemy of the other, and to sail and trade with their ships and merchandise, with perfect security and liberty, from the conntries, pf>rts and places of those who are enemies of both or of either party, without any opposition or dis- turbance whatsoever, and to pass not only directly from the places and ports of the enemy aforementioned, to neutral ports and places, but also from one i)lace belonging to on enemy, to another place bo- longing to an enemy, whether they be under the jurisdiction of the same power, or under the several ; unless such ports or places shall be actually blockaded, besieged, or invested. " And whereas it fivfuiently happens, that vessels sail for a port or place belonging to an Ciieniy, without knowing that the same is either besieged, blockaded, or invested, it is agreed, that every vessel so cir- cumstanced may be turned away from such port or place ; but she shall not be detained, nor any part of her cargo, if not contraband, bo confiscated, unless, after notice of such blockade or investment, she shall again attempt to enter ; but site shall be ]iennitted to go to any other port or place she shall think proper. Nr,r shall any vessel of either, that may have entered into si'ch port or place before the same was actually besieged, blockaded, or invested by the other, be restrain- ed from quitting such place with her cargo, nor if found therein after CONVENTION OF 1800 WITH FRANCR. 361 I, by the tification ) exccp- intion tho joy in tlio the privi- otlior tlio atiirulizn- is ntlowvd ted in tho itcil, to ro- uts not to nient. to pay ro- country to always ex- ' the otiier, ith perfect those who ion or dis- the places nd places, place bo- ion of the aces sliall a port or is either Isel so cir- ; but she (aband, bo lent, she [o to any vessel of the same restrain- Ircin after tion consisted in expunging tho 2d article, and inserting tha following : — " It is agreed that the present convention shall be in force for the torin of eight years from the time of tha the reduction ond surrender of such i)lace, shall such vessel or lier cargo be liable to confiscation, but they shall be restored to the own- ers thereof. " Art. 13. In order to regulate what sliall be deemed contraband of war, there shall be comprised under that denomination, gunpow- der, saltpetru, petards, match, ball, bombs, grenades, carcasses, pike?, lialberds, swords, belt.s, pistol.-<, holsters, cavalry saddles and furniture, cannon, moitars, their carriages and beds, and generally all kinds of arms, amnuniition of war, and instruments fit for the use of troops; all the above articles, whenever they ore destined to the port of au enemy, are hereby declared to be contraband, and just objects of con- fiscation ; but the vessel in which they are laden, and the residue of the cargo, shall be considered free, and not in any manner infected by the prohibited goods, whether belonging to tho same or a difierent owner. " Art. 14. It is hereby stipulated that free slii])s shall give a free- dom to goods, and that every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the citi- zens of either of the contracting parties, although the whole lading, or any part thereof, should appertain to the enemies of cither, contra- bond goods being always exce[)ted. It is also agreed, in like manner, that the same liberty be extended to persons who aro on board a free ship, with this effect, that although they be enciuics to either party, they are not to be taken out of that free ship, unless they ore soldiers, and in actual service of the enemy. - "Art. 15. On the contrary, it is agreed, that whatever shall bo found to be laden by the citizens of cither party on any ship belonging to the enemies of the other, or their citizens, shall be contiscated with- out distinction of goods, contraband or not contraband, in the saniM manner os if it belonged to tho enemy, except such goods and mer- chandises as were put on board such ship before the declaration of war, or even after such declaration, if so be it were done without knowledge of such declaration ; so that the goods of tho citizens of cither party, whether they be of the nature of such as are prohibited, or otherwise, which, as is aforesaid, were put on board any ship be- longing to an enemy, before the war, or after the declaration of the same, without the knowledge of it, shall no ways be liable to confisca- tion, but shall well and truly be restored without delay to the proprie- VOI.. I. 4G *^*^. IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 1.1 1^178 |25 ■JO ^^* IMH KU Kii 12.2 IL25 III 1.4 1.6 o> % 7 ^-^^ 7 Photographic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. MSSO (716) •72-4503 ^ 362 CONVENTION OF 1800 WITH FRANCE. exchange of the ratifications." The expunging this section removed one of the greatest embarrassments, to which the country was ever exposed, — we mean the mutual guaranty tors demanding the same ; but so as that if the said merchandises be contraband, it shall not be any ways lawful to carry them afterwards to any ports belonging to the enemy. The two contracting parties agree, that the term of two months being passed after the declaration of war, their respective citizens, from whatever part of the world they come, shall not plead the ignorance mentioned in this article. " Art. 16. Merchant vessels to exhibit their passports and certifi- cates. ■'..-■•..:.;"-•■..- " Art. 17. Merchant vessels to be provided, in time of war between one of the parties and a third power, with passports and certificates. Merchant vessels delivering up contraband articles, allowed to pursue their voyages. «♦ Art. 18. If the ships of the citizens of either of the parties shall be met with, either sailing along the coasts, or on the highseas, by any ship of war or privateer of the other; for the avoiding of any disor- der, the said ships of war or privateers shall remain out of cannon shot, and may send their boats on board the merchant ship which they shall so meet with, and may enter her to the number of two or three men only, to whom the master or commander of such ship shall exhi- bit his passport concerning the property of the ship, made out accord- ing to the form prescribed in the fourth article. And it is expressly agreed that the neutral party shall in no case be required to go on board the examining vessel for the purpose of exhibiting his papers, , or for any other examination whatever. " Art. 19. Merchant vessels under convoy, not to be visited. *' Art. 20. In all cases where vessels shall be captured or detained, under pretence of carrying to the enemy contraband goods, the cap- tor shall give a receipt for siich of the papers of the vessel as he shall retain, which receipt shall be annexed to a descriptive list of the said papers: and it shall be unlawful to break up or open the hatches, chests, trunks, casks, bales, or vessels, found on board, or remove the smallest part of the goods, unless the lading be brought on shore in presence of the competent ofiicers, and an inventory be made by them of the said goods. Nor shall it be lawful to sell, exchange, or alienate the same in any manner, unless there shall have been lawful process, and the competent judge or judges shall have pronounced against such goods sentence of confiscation, saving always the ship and the other goods which it contains. ' - - • i' CONVENTION OF 1800 WITH FRANCE. 363 section ich the uaranty (idises be kerwards g parties clnration orld they t id certiii' between rtificates. to pursue rties shall as, by any iny disor- tf cannon hich they ) or three hall exhi- Lit accord- I expressly to go on lis papers, :ed. detained, the cap- is he shall the said hatches, imove the shore in e by them )r alienate I process, ainst such the other of the treaty of alliance. We have already said that Con- gress, in July '98, adopted a resolution, abrogating that in- strument. We need not remark that the United States could not divest itself of obligations, termed in the civil law symallagmatic ; for that instrument was a contract, which could be dissolved only by the consent of both partieii, or by the act of war ; but to neither of these ordeals had the treaty been subjected. Hostile measures had been adopted by the Executive, but they were measures only of defence ; '* Art. 21. The master or supercargo of a captured vess.'^l, not to be removed. " Art. 24. When the ships of war of the two contracting parties, or those belonging to their citizens which are armed in war, shall be ad- mitted to enter with their prizes the ports of either of the two parties, the said public or private ships, as well as th'jir prizes, shall not be obliged to pay any duty either to the officers of the place, the judges, or any others ; nor shall such prizes, when they come to and enter the ports of either party, be arrested or seized, nor shall the officers of the place 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 expressed in their commissions, which the commanders of such ships of war shall be obliged to show. It is always under- stood that the stipulations of this article shall not extend beyond the privileges of the most favoured nation. " Art. 25. It shall not be lawful for any foreign privateers who have commissions from any prince or state, in enmity with either na- tion, to fit their ships in the ports of either nation, to sell their prizes, or in any manner to exchange them ; neither shall they be allowed to purchase provisions, exce])t such as shall be necessary fur their going to the next port of that prince or state, from which they have receiv- ed their commissions. " Art. 26. Pirates not to be received in the ports of either party. " Art. 27. Neither party will intermeddle in the fisheries of the other on its coasts, nor disturb the other in the exercise of the rights which it now holds or may acquire on the coast of Newfoundland, in the gulf of St. Lawrence, or elsewhere, on the American coast, north* ward of the United States. But the whale and seal fisheries shall be free to both in every quarter of the world, *' This convention shall be ratified on both sides in due form> and the ratifications exchanged in the space of six months, or sooner if possible." • ), . ^ - ,.-. „.^ ;864 CONVENTION OF 1800 WITH FRANCE. i;^! junder the constitution, the President cannot declare a war. The French commissioners were, therefore, right in requir- ing that the treaty of '78 should be renewed, or modified, or abrogated by mutual consent. It could not be expected, they should acknowledge the validity of an act of the Aroeri- caiv Congress. On the other hand, the commissioners, una- ble to deviate from their instructions, or refuse obedience to the law we have just mentioned, considered the treaty no longer in existence. This circumstance gave rise to another difficulty. The parties could not agree upon the amount of indemnity, demanded by the United States for property, ille- gally taken, because the French plenipotentiaries could only consent to regulate this amount by the stipulations of the original treaty. In the 2d article, the question of indemni- ties was referred to a subsequent negotiation ; and though the provisions of the treaties of '78 were modified by the «onvention, no opinion was expressed upon the claim of right. We have, already, said that the United States required that this article should be expunged. The article, in itself, was perfectly harmless as it respected the American government ; for it did not contain a positive stipulation of any kind ; but the government did not choose any doubt should remain of the firm resolution it had adopted, of never consenting to the rer^ewal of the treaty of Paris. The first opportunity was iaken of getting rid of a most embarrassing obligation, it -was never in a condition to fulfil. We can, in this manner, account for the readiness with which the First Consul ac- cepted the modification of the Senate. It is not a common proceeding in diplomacy ; but, in reality, the guaranty had become altogether illusory. France could never expect to derive any benefit from it. But the First Consul coupled bis acceptance of the modification with this condition : *' pro- vided that by this retrenchment the two states renounce the respective pretensions which are the object of the said arti- cle;" that is, the Americans renounced their claims for indemnities, and the French the fulfilment of the guaranty. The French government gave public notice in this manner, that they would hereafter pay no attention to the demands of CONVXNTIOIf OF 1800 WITH FBANCC. 365 s a war. requir- ified, or ipected, Ameri- TS, una- ienoe to reaty no another Dount of rty, ille- uld only i of the inderoni- 1 though d by the of right, ired that self, was >rninent ; ind ; but smain of ng to the nity was ation, it manner, nsul ac- coinmon nty had xpect to coupled : « pro- nce the laid arti- ims for [uaranty. manner, ands of Americans for property, illegally taken by their cruisers pre- vious to the treaty. ' In negotiating this convention it was quite apparent throughout, that the French commissioners had little other object in view than to relieve themselves of all indemnities. France was exceedingly poor, — the active capital of the country had been wasted or squandered, and such was the unsettled state of public affairs, that men had been altogether deterred from embarking in those occupations and pursuits, that would have led to a renewal of wealth. Mr. Livings- ton, in a letter of March 1802, observes, 'Mheir expenses exceed their income, and the government is, at this moment, maintained by anticipations at an interest of from 1 2 to 18 per cent. The period when this convention was matured, was, on the whole, auspicious for negotiation. Napoleon, at his first accession to the consulate, sought forpeace with all the world. France truly needed it. She was exhausted by the bloody wars of Germany, Italy, and the low countries, and by the internal commotions of the Vendeans and Chouans. He proposed peace to England and to the enemies of France on the continent. But America was the only country with whom a treaty was definitively concluded. ?; ?«-»'; We are not disposed to criticise with severity any portion of the negotiations with France from the first mission of Mr. Pinckney ; — on the contrary, the course of the administration, in the outset, admits of a full vindication : but we think there is no injustice in excluding from the bjenefit of this general praise the two acts that embrace the abrogation of the provision of guaranty, and the manner in which the conven- tion of 1800 was concluded.* The first proceeded from an exercise of authority, that could be assumed by this govern- ment only on one ground. That stipulation was undoubtedly the root of all the evil ; — every difficulty and embarrassment, experienced by the United States in the negotiations with ' * The appropriations for the convention of 1800 were passed by the House of Representatives unanimously. 366 CONVENTIOW or 1800 WITH FRAICCE. France from April 1793, may be traced (o it in a direct line, but in a legitimate sense it could only be torn out by the joint efforts, the mutual consent of the parties. The act of abrogation presented a fair ground to France for indemnity, and is only to be defended, or rather justified from consid- erations of rigid necessity and obvious self preservation. There appears, also, some degree of precipitancy in conclud- ing the convention of 1800. More caution and reserve ivould probably have obtained better and more distinct terms, for after all, the substance of the treaty is contained in the provision under which the First Consul ratified it. To this it may be said in reply, it was extremely important for the United States to withdraw as speedily and as effectually as possible from European politics, then in the greatest fermen- tation, and that the same defence, which has been urged in the case of the London treaty of 1 794, may well be brought forward on the present occasion ; — it defined and secured the neutrality of the country. That argument is, we admit, always the most forcible that can be employed on any sub- ject, relating to our diplomacy, but from the minute accounts we have now the advantage of possessing of the situation of France at that period, it is difficult to discern the least symp- tom, or indication, or desire on her part to force this country into a war ; — and the three sets of commissions, successively issued by this government, with somewhat unusual haste and eagerness, could leave little doubt of the course we were disposed to follow. A nominal war had existed, and the convention put an end to it, but without securing a livre in the shape of indemnity for the spoliations, that, on our part, led to hostilities. The government assumed the right of abrogating the guaranty, and yet gave away the whole stipulation for the great amount of claims on France. The mischiefs, resulting from this proceeding, have been felt to this day ; — ai ■■|;*' )'■! ( 367 ) f*m id line, by the 3 act of emnity, consid- rvation. !onclud- reserve it terms, d in the 'o this it for the tually as fermen- urged in brought secured ^e admit, any sub- accounts nation of ist symp- s country cessively aste and e were and the livre in jour part, right of le whole le. The felt to ourable, w CHAPTER IX. CESSION OV LOUISIANA. Purchase^ a good one — JVecessary for JVestern country — fn '90 Je Moustier made enquiries respecting Western country — French pos' tessions in JVorlh America extinguished by treaties of^G2 and '63 — Louisiana secretly ceded to France — Great uneasiness in America — War with France — Coalition with England — France prepares to take possession of it — Prevented by rcncxvul of war — Monroe sent to France— Important instructions — Details of negotiation — First price exorbitant — Ceded to United States — Terms — Made a " territory'*'' and then a state — Letter of British officer on Louisiana. The next treaty made with France was one, by which the important cession of Louisiana was accompHshed. Time has already proved this measure to have been judicious on the part of the American government, and the purchase in every respect extremely cheap. The United States held, at the time, wide and broad possessions of fruitful soil and easy cul- tivation, far exceeding the wants of the population ; and, novel and without precedent as was the spectacle of a youth- ful government, like America, entering into treaties with the ancient European states for the transfer of extensive tracts of country, it did not even appear, at first blush, a discreet arrangement to bring so great a quantity of excellent land into the market. But without a permanent unmolested en- trance to the Gulf of Mexico, the territory west of the Al- leghany, was despoiled of one half its value. The boundary of the Mississippi, and the free navigation of that river to its mouth, were, at the time of this treaty, indispensable to the proper independence and the full enjoyment of the great water communications of the western country. ,> The period of the discovery of the Mississippi, and the persons by whom the discovery was made, have been matters 868 CKSSION or LOUISIANA. B !4 of controversy. But we shall not enter into that subject. The country, now called Louisiana, originally belonged to France, but by a secret compact, concluded between France and Spain in 1762, and by the treaties of the following year between France, Spain and England, the French dominion was extinguished on all the continent of North America. And by the treaty between this country and England in 1783, the Mississippi became the western boundary of the United States from its source to the 31st degree of north latitude, And thence on the same parallel to the St. Mary's. We shall have occasion to speak more particularly of this bounda- ry of the United States in treating of our foreign relations with Spain. A right of deposite at New Orleans for the produce of the west was secured by the treaty of '95 with Spain ; but great obstacles being thrown in the way of the navigation, and a serious attempt made to bring about a separation of the western country, the stipulations of this instrument were not carried into effect for three years. Towards the close of the administration of Mr. Adams, mea- sures even were adopted to take forcible possession of New Orleans, but the difficulties with Spain in that quarter having been for the time, overcome, the scheme was abandoned. Nevertheless, alarming uneasiness still existed in the west ; the control of the Mississippi remained in foreign hands, and the extreme anxiety and apprehension, always manifested concerning the navigation of that river, were greatly aug- mented, when the article of the secret treaty of St. Ildefonso, ceding Louisiana to France, was known in the United States. This treaty was in reality, concluded in October 1800, but it was not promulgated till the beginning of 1802. The article of cession is in these words : ** His Catholic Majesty engages to retrocede to the French re- public, six months after the full and entire execution of the condi- tions and stipulations above recited, relative to his Royal Highness the Duke of Parma, the colony or province of Louisiana, with the same extent that it already has in the hands of Spain, and that it had when France possessed it, and such as it should be, after the treaties passed subsequently between Spain and other powers." CSSSION OF LOUlglANA. 369 ubject. ged to France jg year on was And 1783, United atitude, ». We jounda- elations for the )5 with of the about a of this years. DS, mea- of New r having indoned. s west ; nds, and inifested itly aug- defonso, I States. ;oo, but The encb re- le condi- [ighness Iwith the Id that it ifter the ^ers." Every thing was to be apprehended from the activity and intelligence of the French in a country of such uncommon richness and resources. Speedily, wu should have seen thcni closing the navigation of the Mississippi to the Americans, and securing the whole commerce of the Gulf of Mexico and the West Indies. These considerations, awakening great and just alarm in the United States, it appeared necessary to re- sort to force to prevent their entrance into Louisiana, aiul a disposition gradually developed itself to form an alliance with England. It is not probable that the government would ever have allowed France to take possession of Louisiana, al- though, from a union and comparison of various circumstances, the outlines of the scheme of the First Consul may be sketch- ed with tolerable precision. An armament was, indeed, prepared in the French ports, officers were selected ex- pressly for the expedition, and on the ratification of the trea- ty of Amiens of 1802, the secret article of the treaty of St. lldefonso was immediately produced. Whether this enter- prize was suggested by the recent crusade into Egypt, or by a recollection of the former power of France in this hemi- sphere, the operation was a magnificent one, and justly and emphatically belongs to the first class of profound, compre- hensive plans. At peace with England, no impediment ex- isted to the transportalioti of troops and every description of stores ; — with the occupation of Louisiana, the conquest of St. Domingo, where the French, though in the outset alto- gether triumphant, now began to experience cruel reverses, would have followed ; and ultiif v^ly the principal control of the commerce of the neighbourn: - seas. Louisiana original- ly formed part of the French dominions in North America, and traces of the solidity of their works, and of the enter- prise and intelligence of that nation, now remain in that country, as, indeed, they do in most of those regions, from which they have been excluded by the Americans or the British. Before the disastrous peace of '63, Fiance sur- passed all the civilized people of Europe in the extent and value of her commerce, colonies and foreign possessions, and in her spirit of enterptize ; hut at that period began the down- voL. I. 47 370 CESSION or LOUISIANA. I W fall of one of (he most enlightened and polished nations known in history. It was, undoubtedly, in the plan of the French government to recover their ancient possessions in America, and to ap- proach the Canadas by the valleys of the great rivers of the west, as they had undertaken to reconquer their settlements in the east by Egypt and the Red Sea. The danger, that threatened the western country at (his period, cannot be dis- guised ; — the First Consul held at his command the combined fleets of France and Spain, and for a few months in the four- teen years of his extraordinary reign, he was without an ene- my on the ocean ; — the United States were on the eve of a war with Spain, in consequence of that government having abrogated the right of warehouse at New Orleans. A French army, arriving in the Mississippi, would have landed not only on a neutral soil, but among its allies, inflamed with an unu- sual degree of animosity against the Americans, and eagerly seeking an opportunity, not only to revenge themselves, but to recover what they had lost. Without a question, France would have made an eflbrt to regain all the territory west, at least, of the Ohio. It is true, the resources, both moral and physical, of the people, and the experience of the last war have now taught us to consider, ns truly chimerical, projects to land on our coasts, or to penetrate into the interior settle- ments. But in 1802, Louisiana was a foreign country ; its population was principally foreign, the western states were furnished with scanty means of defence or resistance, com- pared with their present situation, the successes of the French armies had acquired for them a formidable reputation, and none of those events had then taken place, which have since inspired the Americans with so much confidence in defending their native soil. We consider the situation of the country as exceedingly critical. England, dissatisfied with the hollow peace of Amiens, and preparing for another war with France, was striving to force us into an alliance with her, and a con- siderable portion of the people saw no safety, except in that step. Events had truly taken a singular turn. A few years before, the government, with the utmost difficulty escaped CBISION OF LOUISIANA. 371 known rnraent to ap- 9 of the lements er, that be dis- »mbined he four- an ene- tve of a t having L French not only an unu- eagerly ves, but , France west, at koral and last war projects r settle- try ; it's es were ce, corn- French ion, and ve since efending country e hollow France, d a con- t in that w years escaped an alliance with France and a war with Kngland ; so true it is, that the United States, immediately on the declaration of their independence, became subject to the caprices, influence and vicissitudes of European politics. But, as in the year '94, the government again had re- course to negotiation ; — America was neither prepared for war, nor even prepared to expect it ; — in the midst of the general repose of Europe, the treaty of St. Ildefonso was boldly disclosed. " Peace, commerce, and honest friendship with all nations, entangling alliances with none," had been declared by Mr. Jefferson, in his inaugural address of March 1801, to be one of the fundamental maxims of the state. From the foundation of the government in 1789, the ad- ministration had once been compelled in the extremity of in- dignity to depart from this policy, but an attitude, so decid- ed, was not resolved on, till negotiation had become worse than hopeless. On the other hand, France, perceiving, she was again threatened with another war by her ancient and indefatigable rival, was not without apprehension that the United States would become a party to the fresh coaUtion, forming against her. Troops could no longer be transported in safety to Louisiana ; — the cruelties of her armies in St. Domingo were dreadfully revenged ; it had become necessa- ry to abandon that island to its fate ; and standing in need of money to provide for the attacks, with which she was either menacing England or Austria, no better arrangement remained than to cede Louisiana to the United States. This was the last attempt of any European nation to take perma- nent possession of any part of the continent of North Amer- ica. From that time, France was occupied with her Euro- pean wars, and though this government has been vexed and embarrassed by tedious and unsatisfactory negotiations with her, they have all emanated from commercial relations and difficulties. As early as March 1802, we find an intimation from the government respecting the transfer of Louisiana ;* and in * It appears from a letter of Mr. Jefferson, of August 1700, wlien 372 CKRSION or LOriilTAlirA. May of llic same year Ihc followinp direct remarks from the Secretary of State to the minister in France : " The cession of J.oujvi.ina lo Fiance, becomes dnlly rr.orc and more a sonrcc of painful nppreliensions. Notwithstanding the treaty of March lOOl, and nolivilhstnndinp^ the general belief in France on the subject, and tlic accounts from St. Domingo, tliat part of the armament sent to that Ishind, was eventually destined for Louisiana, a hope was still dra»vn from your early conversa- tions with M. Talleyrand, that the French government did not mean to pursue the object. Since the receipt of your last com- munications, no hope remains but from the accumulating difficul- ties of going through with the undertaking, and from the convic- tion you may be able to impress, that it must have an instant and powerful elTecf in changing the relation)' between France and the United States." "A mere neighbourhood could not be friendly to the harmony, which both countries have so much nn interest in cherishing; but if a possession of the mouth of the Mississippi is to be added to other causes of discord, the worst events are to be apprehended. You will, consequently, spare no efforts, that will Secretory of State, that Franco bud, l)efore this period, conceived the project of cflt'cting a sotlieincnt on this continent. ••It is proper to np|u-ise you of a circumstance, wliicb may show the expediency of being, in some degree, on your guard, even in your rommunicatiuns to the Court of France — it is believed hero that the Count de Moustier, during liis residence with us, conceived a pi eject of again engaging France in a colony upon our continent, and tlmt he directed bis views to some of the country on the Mississippi, and ob- tained and communicated n good deal of mutter on the subject to bis Court — be saw the immediate advantage of selling some yards of French cloths ond silks to the inhabitants of New Orleans — but be did not take into account what it would cost France to nurse and pro- tect a colony there, till it should be able to join its neighbours, or to stond by itself, and then what it would cost her to get rid of it. I hardly suspect thot the Court of France could be seduced by so par- tial a view of the subject as was presented to them, and I suspect it less since the National Assembly has constitutionally excluded con- quest from the objects of tlieir government, it may be added too, that the place being ours, their yards of cloth and silk would be as freely sold, as if it were theirs." . . , r .. CEflMON or LOUISIANA. 3T3 ;s from ore nnd ing the lelief in go, tlint destined onversn- did not i8t com* diflicul- » convic- >tnnt nnd nnd the ; frirndly ferest in issippi is fire to be that will :oived the my show I) in your tlint the a jhoject (1 tliat he , and ob- ect to his yards of —but lie nnd pro- rs, or to of it. I y so par- uspect it dcd con- too, that as freely coniilit with prndencc nnd dignity, to lend the conncila of France (o proper tIcws of this subject, nnd to nn nbnndonment of her present purpose. You will, nlno, pursue by prudent menns, the enquiry into the citeni of the cession, pnrticulnrly, whether it in> eludes the FInridas, ns well ns New Orleans, nnd endeavour to ns- certain the price at which these, if included in the cession, would be yielded to the United States. I cannot in the present state of things be mure particular on this head than to observe, that in every view it would be a most precious acquisition, and that as far ns the terms could be satisfied by charging on the acquisition it- self, the restitution and other debts to American citizens, great liberality would, doubtless, be indulged by this government.^' This was a period of extreme anxiety ; the reports from Europe were various, but all alarming. It was believed that France had made the acquisition of Louisiana prior to 1801, though the precise date could not be ascertained, nor the object that government had in view. Since the nego- tiations in Europe during the revolution war, the business of the cession of Louisiana was really the most important topic, that has occurred in our diplomatic history. And in that circumstance, we trust, we shall find an apology for in- troducing another extract from a despatch, written about this time, to the American Minister in Spain, May 11, 1802. " We are still without a line from you since your arrival at Mad- rid, and feel an increasing solicitude to hear from you on the sub- ject of Louisiana. The latest information from Paris has confirmed the fact, that it was ceded by a treaty, prior to that of March 1801, and notwithstanding the virtual denial of the cession in the early conversations between Mr. Livingston and the Minister of Foreign Relations, a refusal of any explanations, at present, seems to admit that the cession has taken place. Still, there are chances of ob- taining a reversal of the transaction. The repugnance of the United States to it, is and will be pressed in a manner, that cannot be without some efiect. It is known that most of the French statesmen, best informed on the subject, disapprove of it. The pecuniary difficulties of the French government must, also, be felt as a check : whilst the prospect of a protracted and expensive war in St. Domingo, must form a very powerful obstacle to the cxccu- s-j^ CESSION OF LOUISIANA. ['^ m tion of the project. The councils of England appear to have been torpid on this occasion. Whether it proceed from an unwilling;- ness to risk a fresh altercation with France, or from a hope that Auch a neighbourhood between France and the United States would lead to collisions, which might be turned to her advantage, is more than I can decide. The latter consideration might justly have great weight with her, but as her eyes may be more readily turn- ed to the immediate and certain purposes < Se answered to her rival, it is to be presumed, that the policy of England will contri- bute to thwart the acquisition. What the intentions of Spain may be, we wait to learn from you. Verbal information from inofficial sources has led us to infer, that she disowns the instrument of ces- sion and will rigorously oppose it. Should the cession actually fail from this or any other cause, and Spain retain New Orleans and the Floridas, I repeat to you the wish of the President, that every effort and address be employed to obtain the arrangement, by which the territory on the east side of the Mississippi^ including JVctB Orleans, may be ceded to the United States, and Mississippi made a common boundary with the common use of its navigation for them and Spain. The inducements to be ) :;ld out to Spain were inti- mated in your original instructions on his point. I um charged by the President now to add, that you may ot only receive and transmit a proposition of guaranty of her territory 'ijond the Mississippi, as a condition of her ceding to the United State: he territory including JVew Orleans on this side, but in case it he nect ary, may make the proposi- tion yourself, in the forms required by ov constitution. You will in- fer from this enlargement of your audi ity, how much importance is attached to the object in question, fi "curing a precious acqui- sition to the United States, as well as a natural and quiet boundary with Spain, and will derive from this consideration additional mo- tives to discharge, with a prudent zeal, the task committed to you." The latter part of the year 1802 did not bring informa- tion at all satisfactory to tiie American government ; — war or the settlement of the French peaceably in Louisiana were offered to our choice, and it did net much signify, which al- ternative was accepted. We had, already, found the Span- iards troublesome enough as neighbours, but with the English CESSION or LOUISIANA. 375 have been unwilling- hope that ates would l^e, if more jstly have jidWy turn- ed to her rill contri- Spain may D inofficial jnt of ces- n actually w Orleans ident, that angement, , including sippi made n for them were inti- :harged by nd transmit sippi^ as a udivg A''ew he proposi- ou will in- rnportnnce ous acqui- boundary tional mo- tmitted to iiiforma- \t ; — war ana were which al- ia Span- e English in possession of the course of the northern lakes and of the St. Lawrence, and the French masters of the valleys of the great western rivers and of the outlets in the Gulph of Mex- ico, we should shortly have been despoiled of all the benefits of that neutrality, we were then honourably enjoying. The two most powerful as well as ambitious nations of £urope, entrenched upon our northern, western and southern fron- tier, — (and in the face of their numerous navies it could hardly be said, that even the Atlantic was open) and having pursued each other with a deadly hatred on all the conti- nents of the old world, threatened to select, as their last field, the distant possessions of America, not those shores, £rst approached by Europeans, but the very heart and bow- els of our country, penetrating, in a single campaign, with their armies and military array those remote and inland re- gions, to which, at the end of half a century, even, the as- tonishing and rapid progress of our own population had just reached. We should have seen great armies contending be- tween the Pacific and Atlantic, with a desert on one side of them and a civilized nation on the other ; — as if wearied of desolating the ancient, rich fields, — of destroying the com- pact villages of Europe, they had chosen these extensive prairies on account of their solitude and remoteness. We should have seen, too, renewed, the scenes we had witnessed so often as colonies, and though now at liberty to select the foe, no other advantages would have fallen to our lot in the war. What benefit could a partition of the richest spoil con- fer, if the division took place on condition, that extensive territories on this continent should be left in the hands of a powerful nation. We should merely have been fighting to augment the resources, to sharpen the weapons of a state, — to render still more powerful a people, destined, perhaps, at an early period to become in its turn an enemy. The administration watched with an anxious and vigilant eye the movements in Europe and in its own neighbourhood. The people, at large, were probably little aware of the dan- ger with which they were menaced, and though any great portion of secrecy appears impossible in the operations of this ii'f !»'' Ml. 11' ■ ■ W: ^&-' Ff 376 CESSION OF LOUISIANA. government, yet the whole business was managed with re- markable caution and discretion. It is far, indeed, from be- ing imaginary, that the executive looked forwaid at that pe- riod to the contingency of a war. In May and April 1803, Mr. Madison, secretary of state, sent the following confiden- tial and important communications to Messrs. Monroe and Livingston in Paris. " If the French government, instead of friendly arrangements or views, should be found to meditute hostilities, or to have formed projects, which will constrain the United States to resort to hostili- ties, such communications are then to be held with the British gov- ernment, as will sound its dispositions, and invite its concurrence In the war. Your own prudence will suggest, that the communi- cations be 80 made, as, on one hand, not to precipitate France into hostile operations, and, on the other, not to lend Great Britain to form the supposition, that war depends on the choice of the United States, and that their choice of war will depend on her par- ticipation in if. If war is to be the result, it is manifestly desira- ble, that it be delayed until the certainty of this result can be known, and the legislative and other provisions can be made here : and, also, of great importance that the certainty should not be known to Great Britain, who might take advantage of the posture of things to press on the United States disagreeable conditions of her entering into the war. *^ It will probably be most convenient in exchanging ideas with the British government to make use of its public minister at Paris as less likely to alarm and stimulate the French government, and to raise the pretensions of the British government, than the repairing of either of you to London, which might be viewed by both as u signal of rupture. The latter course, however, may possibly be rendered most eligible by the pressure of the crisis. " Notwithstanding the just repugnance of this country to a coali* tion of any sort with the belligerent parties of Europe, the advan- tages to be derived from the cooperation of Great Britain in a war of the United States at this period agrainst France and her allies, are too obvious and too important to be renounced. And, notwith- standing the apparent disinclination of the British councils to a re- newal of hostilities with France, it will probably yield to the vari- ous motives, which will be felt, to have the United States in the •i4 CESSION or LOUISIANA. STt rith re- •om be- ;hat pe- [ 1803, )n(iden- oe and vents or ! formed 9 hostili- tish gov- :urrence ommuni- B France t Britain e of tiie her par- y desira- t can be de here : \ not be i posture litions of eas with Paris as and to pairing )oth as u isibly be a couli'o ad van- in a war ir allies, notwith- to a re- le V ari- ls in the scale of BritaiD against France, and, particularly, for the immediate purpose of defeating a project of the latter, which has evidently created much solicitude in the British government. " The price which she may attach to her cooperation cannot be foreseen, and therefore cannot be the subject of full and precise instructions. It may be expected that she will insist, at least, on a stipulation that neither of the parties shall make peace or truce' without the consent of the other, and as such an article cannot be deemed unreasonable, and will secure us against the possibility of her being detached in the course of the war, by seducing overtures from France, it will not be proper to raise difficulties on that ac- count. It may be useful, however, to draw from her a definition, as far as the case will admit, of the objects contemplated by her, that whenever, with ours they may be attainable by peace, she may be duly pressed to listen to it. Such an explanation will be the more reasonable, as the objects of the United States will be so fair and so well known. " It is equally probable, that a stipulation of commercial advan- tages in the Mississippi beyond those secured by existing treaties, will be required. On this point it may be answered at once, that Great Britain shall enjoy a free trade with nil the ports, to be ac- quired by the United States, on the terms, allowed to the most favc'irej nation in the ports, generally of the United States. If made an essential condition, you may admit that in the ports to be acquired within the Mississippi, the trade of her subjects shall be on the same footing for a term of about ten years with that of our own citizens. But the United States are not to be bound to the exclusion of the trade of any particular nation, or nations. " Should a mutual guaranty of the existing possessions, or of the conquests to be made by the parties, be proposed, it must be explicitly rejected, as of no value to the United States, and as en- tangling them in the frequent wars of that nation with other powers, and very possibly in disputes with that nation itself. " The anxiety, which Great Britain has shown to extend her domain to the Mississippi, the uncertain extent of her claims from north to south beyond the western limits of the United States, and the attention she had paid to the northwest coast of America, make it probable that she will connect, with a war on this occasion, a pretension to the acquisition of the country on the west side of the VOL. I. 48 878 cxasioM or Louisiana. Mississippi, understood to be ceded by Spain to France, or, at least, of that portion of it lying between that river and the Missouri. The evils involved in such an extension of her possessions in our neighbourhood and in such a hold on the Mississippi are obvious. The acquisition is the more objectionable, as it would be extremely displeasing to our western citizens, and as its evident bearing on South America might be expected to rouse all the jealousies of France and Spain, and to prolong the war, on which the event would depend. Should this pretension, therefore, be pressed, it must be resisted as altogether repugnant to the sentiments and sound policy of the United States. But it may be agreed in alle- viation of any disappointment of Great Britain, that France shall not be allowed to retain or acquire any part of the territory, from which she, herself, would be precluded."^—" It will only be ob- served to you, that if f^rance should avow or evince a determina- tion to deny to the United States the free navigation of the Missis- sippi, your consultations with Great Britain may be held on the ground, that war is inevitable. Should the navigation not be dis- puted, and the deposite alone be denied, it will be prudent to adapt your consultations to the possibility, that Congress may distinguish between the two cases, and make a question, how far the latter right may call for an instant resort to arms, or how far a procrasti- nation of that remedy may be suggested and justified by the pros- pect of a more favourable conjecture. The solicitude of England with respect to Louisiana is sufficiently evinced by her controlling the French expedition from Holland to that country. But her views have been particularly unfolded to Mr. King by Mr. Addington, who frankly told him, that in case a war should happen, it would perhaps be one of their first steps to occupy New Orleans, adding that it would not be to keep it, for that England would not accept the country were all agreed to give it to her, but to prevent another power from obtaining it, which, in his opinion, would be best effected by its belonging to the United States, and concluding with assurances, that nothing should be done injurious to their interests. If the councils of France should be guided by half the wisdom, which is here displayed on the part of her rival, your negotiations will be made very easy, and the result of them very satisfactory." CXS8I01V OF LOUISIAITA. 379 at least, Missouri. IS in our obvioas. xtremely iariog on ousies of the event ressed, it lents and id in alle- ince sliali ory, from \\y be ob- etermina- he Missis- Id on the lot be dis- it to adapt listinguish the latter procrasti- the proa- ufficiently iolland to folded to in case a St steps to t, for that to give it which, in he United d be done hould be e part of the result i When France became oppressed with a want of money, and the war, renewed with England, precluded the possibili- ty of executing her projects in the west, an individual was employed in this country to intimate to the American gov- ernment, that the First Consul would, for the payment of a sum of money, consent to the transfer of a portion of Lou- isiana ; — the sum was mentioned as well as the territory proposed for the cession. This communication, not in any way official, came from p. quarter, sufficiently respectable, to attract attention, though, as Congress was not, at that time, in session, and the proposition involving the necessity of an appropriation, the Executive preferred to reserve the con- sideration of it for a more suitable season. The arrangement was too advantageous to be neglected ;— - it promised, at once, to relieve the country from the extreme danger of a useless and costly war, and the continual and infinite inconvenience and injuries of troublesome, powerful and mischievous neighbours. But the acquisition of the whole of Louisiana was not included in the proposition, nor did it occur to the cabinet. Separate from a desire to pre- vent an expedition of the French, it was an important object ^in the accomplishment of which the United States had been industriously engaged for many years) to secure the navigation of the Mississippi, and a settled boundary on the west toward the Spanish possessions. The original plan will be detailed in the instructions to Messrs. Monroe and Livingston, we shall presently quote. For the present, we have only to remark, that the President, early in 1803, de- termined to send a special commissioner to Paris to endea- vour, in conjunction with the resident minister, to effect an arrangement in regard to Louisiana. The following extract from a letter, written in January of that year, will best ex- plain the object and form of the commission. " Mr. Monroe will be the bearer of the instructions, under which you are jointly to negotiate. The object of them will be to pro- cure a cession of New Orleans and Floridas to the United States, and consequently the establishment of the Mississippi as the bound- ary between the United States and Louisiana. In order to draw S80 CESSION OF LOUISIANA. '^^'■'h the French government into the meusure, a sum of money will mnke part of our propositions, to which will be added sach regala- tions of the commerce of that river and of others, entering the Gulf of Mexico, as ought to be satisfactory to France.'' "I have thought it proper to communicate thus much to you, without wait- ing for the departure of Mr. Monroe, who will not be able to sail for two weeks, or perhaps more. I need not suggest to you, that in disclosing this diplomatic arrangement to the French govern- ment and preparing the way for the object of it, the utmost care is to be used in repressing extravagant anticipations of the terms to be offered by the United States, particularly of the sum of money to be thrown into the transaction. The ultimatum on this point will be settled before the departure of Mr. Monroe and will be communicated by him." " For the present, I barely remark that a proposition made to Congress with shut doors is under con- sideration, which, if agreed to, will authorize a payment of about ten millions of livres under nrrangemeffts of time and place, that may be so convenient to the French government, as to invite a prompt as well as favourable decision in the case." It is not difficult to understand the reasons, that induced the French government to part with Louisiana, but we be- lieve the motives of the purchase from Spain have not been explained to this day. It does not seem likely, it should have been made with the intention of a future transfer to this or any other country. Napoleon Bonaparte did not give himself much trouble, or exercise much delicacy in regard to the demands of foreign governments ; — and without at all knowing how much it cost him to procure the treaty of St. Ildefonso, we cannot believe that the just claims of Ameri- can citizens had a great influence on his conduct in that transaction. If no one, in modern times, has surpassed, in profound political shrewdness and sagacity, the minister of foreign relations of the consular government, it, still, cannot be the slightest reproach to him to intimate, that it was, by no means probable, he should have foreseen the truce of Amiens, the almost immediate renewal of the war, and the entire impossibility for the French to carry into execution the splendid scheme they had formed in regard to Louisiana. ■r' CESSION or LOUISIANA. 381 jney will h regula- ering the -" 1 have out wait- >le to sail jroo, that 1 govern' most care the terms of money :his point id will be y remark inder con- it of about >lace, that ,0 invite a t induced it we be- not been it should -ansfer to not give in regard Dut at all y of St. f Araeri- t in that assed, in inister of , cannot was, by truce of and the xecution ouisiana. At any rate, this combination of events and circumstances, this juncture of affairs led to one of the most fortunate results possible for this country, and of which we happened to be in a situation to take an immediate and the fullest advantage. We shall now recite at some length the important topics in the instructions to Messrs. Livingston and Monroe ; — they are long and numerous, but we should not have felt justified in abbreviating, much less in suppressing a state paper of this description. " March 2d. 1803. — You will, herewith, receive a commission and letters of credence, one of you as Minister Plenipotentiary, and the other as Minister Extrnordinnry und Plenipotentiary to treat with the government of the French republic on the subject of the Mississippi and the territories eastward thereof, and without the limits of the United States. The object in view is to procure, by just and satisfactory arrangements, a cession to the United States of New Orleans, and of West and East Florida, or as much there- of, as the actual proprietor can be prevailed on to part with." " Among the considerations, which have led the French govern- ment into the project of regaining from Spain the province of Lou- isiana, and which you may find it necessary to meet in your dis- cussions, the following suggest themselves as highly probable : ^^ 1st. A jealousy of the Atlantic States, as leaning to a coalition with Great Britain, not consistent with neutrality and amity toward:} France, and a belief, that by holding the key to the commerce of the Mississippi, she will be able to command the interests and at- tachments of the western portion of the United States, and, there- by, either control the Atlantic portion also, or, if that cannot be done, to seduce the former into a separate government, and a close alliance with herself. In each of these particulars, the calculation is founded in error. " It is not true that the Atlantic States lean towards any connex- ion with Great Britain, inconsistent with their amicable relations to France. Their dispositions and their interests equally prescribe to them amity and impartiality to both of those nations. If a de- parture from this simple and salutary line of policy should take place, the causes of it will be found in the unjust or unfriendly conduct, experienced from one or other of them. In general, it may be remarked, that there are as many points, on which the in- 382 CKSSION or LOUISIAMA. !s;i?f tereats and views of the United States and of Great Britain may not be thought to coincide, as can be discovered in relation to France. If less harmony and confidence should, therefore, prevail between France and the United States, than may be maintained between Great Britain and the United States, the difference will lie, not in the want of motives, drawn from the mutual advantage of the two nations, but in the want of favourable dispositions in the governments of one or other of them. *^ The French government is not less mistaken, if it supposes that the western part of the United States can be withdrawn from their present union with the Atlantic part, into a separate govern- ment closely allied with France. " Our western fellow citizens are bound to the union, not only by the ties of kindred and affection, which for a long time will de- rive strength from the stream of emigration, peopling that region, but by two considerations, which flow from clear and essential in- terests. *^One of these considerations is, the passage through the Atlantic ports of the foreign merchandise, consumed by the western inhabi- tants and the payments thence made to a treasury, in which they would lose their participation, by erecting u separate government. The bulky productions of the western country may continue to pass down the Mississippi, but the difficulties of the ascending navi- gation of that river, however free it may be made, will cause the imports for consumption to pass through the Atlantic States. This is the course through which they are now received, nor will the impost, to which they will be subject, change the course, even if the passage up the Mississippi should be duty free. It is true that mechanical and other improvements in the navigation of the Mis- sissippi may lessen the labour and expense of ascending the stream, but it is not the least probable that savings of this sort will keep pace with the improvements in canals and roads by which the pre- sent cause of imports will be favoured. *^ The other of these considerations results from the insecurity, to which the trade from the Mississippi would be exposed by such a revolution in the western part of the United States. A connexion of the western people, as a separate state with France, implies a connexion between the Atlantic States and Great Britain. It is found from long experience that France and Great Britain are tain may ilalion to !, prevail aintained ence will dvaDtage )M in the supposes awn from e govern- , not only e will de- at region, sential in- le Atlantic irn inhabi- /hich they ivernment. ontinue to ding navi- cause the tes. This )r will the 16, even if true that f the Mis- e stream, will keep h the pre- insecurity, 3d by such ■connexion implies a dn. It is kitain are OBSSIOM or LOUISIANA. 883 nearly half the time at war. The case would be the same with their allies. During nearly one half the time, therefore, the trade of the western country from the Mississippi would have no pro- tection but that of France, and would suffer all the interruptions, which nations, having the command of the sen, could inflict on it. t~ ** Sd. The advancement of the commerce of France by an estab- lishroent on the Mississippi has, doubtless, great weight with the government, in espousing this project. "The commerce through the Mississippi will consist, 1st, of that of the United States ; 2d, of that of the adjacent territories to be acquired by France. " The first is now, and must for ages, continue the principal commerce. The article, to be proposed to her on the part of the United States on that subject, promises every advantage she can desire. It is a fair calculation, that under the proposed arrange- ment her commercial opportunities would be extended rather than diminished, inasmuch as our present right of depcsile gives her the same competitors, as she would then have, and the effect of the more rapid settlement of the western country, consequent on that arrangement, would proportionably augment the mass of commerce to be shared by her. *' The other portion of commerce, with the exception of the Island of New Orleans and the contiguous ports of West Florida, depends on the territory westward of the Mississippi. With re- spect to this portion, it will be little affected by the cession, desired by the United States. The footing proposed for her commerce on the shore to be ceded gives it every advantage she could reasona- bly wish during a period within which she will be able to provide every requisite establishment on the right shore, which according to the best information, possesses the same facilities for such estab- lishments as are found on the Island of New Orleans itself. " There remains to be considered the commerce of the ports in the Floridas. With respect to this branch the advantages, which will be secured to France by the proposed arrangement, ought to be satisfactory. She will here, also, derive a greater share from the increase, which will be given by a more rapid settlement of a fertile territory to the exports and imports through those ports, than she would obtain from any restrictive use she could make of those ports as her own property. 384 CKSSION OF LOUISIANA. ** With a view to permanent harmony between the two nationi, a cession of the Fioridas is particularly to be desired, as ob? iating serious controversies, that might otiienvise grow even out of the regulations, however liberal in the opinion of France, which she may establish at the mouths of those rivers. One of the rivers, the Mobile, is said to be at present navigable for 400 miles above the 31° of latitude, and the navigation may no doubt be opened still further. On all of them the country within the boundary of the United States, though otherwise between that and the sea, is fertile. Settlements on it are beginning, and the people have al- ready called on the government to procure the proper outlets to foreign markets. >it " 3d. A further object with France may be to form a colonial establishment, having a convenient relation to her Weet India Isl- ands, and forming an independent source of supplies for them. " The principles and outlines of the plan of cession are as fol- lows, viz. i .:^4.j»ir ** 1st. France cedes to the United States, forever, the territory, east of the river Mississippi, comprehending the two Fioridas, the i«land of New Orleans and the islands lying to the north and east of the channel of the said river, which is commonly called the South Pass, together with all such other islands as appertain to either West or East IHorida ; France reserving to herself all her territory on the west side of the Mississippi. ,. ^^ " 2d. The boundary between the territory, ceded and reserved by France, shall be a continuation of that already defined above the 31st degree of north latitude, viz., the middle of the channel or bed of the river, through the said South Pass to the sea. The navi- gation of the river Mississippi, in its whole breadth from its source to the ocean and in all its passages to and from the same, shall be equally free and common to citizens of the United States and of the French Republic. " 3d. The vessels and citizens of the French Republic may ex- ercise commerce to and at such places on their respective shores below the said thirty-first degree of north latitude, as. may be allow- ed for that use by the parties to their respective citizens and ves- sels. And it is agreed, that no other nation shall be allowed to exercise commerce to or at the same, or any other place on either shore below the said thirty-first degree of latitude for the term of CEaaiON or LoviaiAWA. 385 o nationtf obfiatiog Dut of the which she he rivent ilea above be opened >undary of Ihe sea, ia e have al- outlets to a coloDial t India Isl- them, ire as fol- territory, oridas, the h and east called the •pertain to geir all her t d reserved ned above channel or The navi- its source e, shall be and of the ic may ex- ive shores f be allow- s and ves- allowed to > on either le term of tea yean, to be computed from the exchange of the ratificatiooa hereof. The citizens, vessels and merchandises of the United States and of France shall be subject to no other duties on their respective shores beloiv the said thirty-first degree of latitude, than are imposed on their own citizens, vessels and merchandises. No duty whatever, shall, aAer the expiration of ten years, be laid on articles, the growth or manufacture of the United States or of the ceded territories, exported through the Mississippi in French ves- sels, so long as such articles, so exported in vessels of the United States shall be exempt from duly : nor shall French vessels, export- ing such articles ever aAerwards be subject to pay a higher duty than vessels of the United States. '* 4th. The citizens of France may, for the term of ten years deposite their effects at New Orleans and at such other places on the ceded shore of the Mississippi, as are allowed for the com- merce of the United States, without paying any other duty than a fair price for the hire of stores. *'6th. In the ports and commerce of West and East Florida, France shall never be on a worse footin|^ than the most favoured nation, and for the term of ten years her vessels and merchandise shall be subject therein to no higher duties than are paid by those of the United States. Articles of the growth and manufacture of the United States and of the ceded territory, exported in French vessels from any port in West or East Florida shall be exempt from duty as long as vessels of the United States shall enjoy this exemption. • V ;; : .? v'. ? *^ 6th. The United States in consideration of the cession of ter- ritory made by this treaty shall pay to France millions of livres tournois. *^ I th. To incorporate the inhabitants of the hereby ceded terri- tory with the citizens of the United States on an equal footing be- ing a provision which cannot now be made, it is to be expected from the character and policy of the United States, that such in- corporation will take place without unnecessary delay. In the mean time they shall be secure in their persons and property, and in the free enjoyment of their religion. Observations on the Plan. '* 1st. As the cession to be made by France, in this case, must rest on the cession made to her by Spain, it might be proper that VOL. I. 49 386 CESSION or LOtriBIANA. I'K^ Spnin should bfi n pnrty to (he Irnnsnctlon. The objectlont, hoir- evcr, to (Inlny, rcq