Relations with France. judge of the country, may be admitted in proof of desertion. XIX. It may be agreed, that, on mutual requisitions by the respective Ministers or Consuls of the two nations, persons charged with murder or forgery committed within the territorial jurisdiction of one, and fleeing to the other, shall be delivered up. or pretended trials, and sales of prizes, by French Consuls and agents: in order to prevent any claim to the exercise of such powers, it will be expedient expressly to declare they shall not be exercised in the United States; whether the prizes are made by public ships or privateers. There will, of course, be a reciprocal denial of the exercise of the like powers by American Consuls and agents XX. It may be agreed that neither party shall in the dominions of France. Prizes ought to be intermeddle in the common fisheries on the coasts conducted to the country to which the captors of the other party, nor disturb the other party in belong, unless the two parties are engaged in hosthe exercise of the rights which either now holds, tilities against a common enemy. But, in this or may acquire, of fishing on the banks of New-case, the established courts for prize causes in the foundland, in the Gulf of St. Lawrence, or elsewhere on the American coast northward of the United States of America: but that the whale and seal fisheries may be freely exercised in every quarter of the world. XXI. The seventh and twenty-second articles of the Commercial Treaty between the United States and France, of February 6, 1778, have been the source of much altercation between the two nations during the present war. The dissolution of that and our other treaties with France leaves us at liberty with respect to future arrangements; with the exception of the now preferable right secured to Great Britain by the twenty-fifth article of the Treaty of Amity and Commerce. In that article we promise mutually that, while we continue in amity, neither party will in future make any treaty that shall be inconsistent with that article or the one preceding it. We cannot, therefore, renew with France the seventeenth and twenty-second articles of the Treaty of 1778. Her aggressions, which occasioned the dissolution of that treaty, have deprived her of the priority of rights and advantages therein stipulated. Indeed, if the public faith pledged in the British Treaty did not forbid a renewal of those engagements with France, sound policy should prevent it. We should preserve to ourselves the right of allowing every commercial nation in amity with us the like shelter, supplies, and assistance, under like circumstances; and, by excluding all equally when engaged in war, (saving to each the rights of humanity and hospitality,) we may keep the calamities of war at a distance. The engagements with Great Britain may cease in two years after the close of the present war: but, under the stipulations contained in the twenty-eighth and last articles of the British Treaty, the engagements in question may be continued to a longer period. If, therefore, you should find any cogent reasons for renewing in substance the seventeenth and twenty-second articles of the Commercial Treaty with France of 1778, it must be with the explicit declaration that neither at the present or any future time, shall the said articles be construed to derogate from the whole or any part of the twentyfourth and twenty-fifth articles of the Treaty of Amity, Commerce, and Navigation between the United States and His Britannic Majesty, concluded at London on the 19th of November, 1794. XXII. The present war has exhibited such inconveniences and mischiefs in our own country, and such monstrous abuses elsewhere, by trials, country to which the prizes are conducted should alone take cognizance of them. XXIII. The duties of an impartial neutrality, when either party shall remain neutral, will forbid any permission to the enemies of the other to arm originally, or to increase a former armament, in the ports of the neutral party. XXIV. When one of the parties shall be engaged in war, the vessels of the other may be captured on just suspicion of having on board property belonging to the enemy of the former, or of carrying to the enemy any of the articles which are contraband of war. With these exceptions, the trade of each party to the ports of the enemies of the other should be perfectly free, unless to the ports actually blockaded; and if such enemies forbear to capture enemies' property in neutral vessels, it may be agreed that in such case, the contracting parties will forbear to capture the vessels of each other for that cause. The law of France of the 18th of January, 1798, respecting produce or manufactures coming from England or her possessions, is incompatible with the stipulation here proposed, and, if not repealed, negotiations with you must be deemed illusory. But that captures on light suspicions may be avoided, and the vexations and injuries thence arising prevented, the usual stipulations for sealetters or passports, and certificates or manifests of the cargoes of vessels, may be introduced. But neither party should be allowed to prescribe the form, or to require the exhibition of any document (the sea-letter and certificates before mentioned excepted) not required by the laws or usages of the party to whose citizens the vessels and their cargoes belong. The form of the sealetter should be simple, like that now used by the United States, in that part of the passport which is printed in the English language. When the quality of the ship, goods, and master, shall sufficiently appear from the sea-letter and certificates, the commanders of armed vessels should exact no further proof. And if any merchant ship be not provided with a sea-letter or certificates, the case should be examined by a proper judge; and if it be found, from other proofs and documents, that the vessel truly belongs to the citizens of one of the parties, it should not be liable to confiscation, but be released with its cargo, with the exception of enemies' property and contraband goods which may be found on board. The change of the master not to invalidate the passport. Relations with France. with his papers. This is an abuse; and many instances have occurred in the present war, is which it has been practised with great inhumanity, and most when it was most inhuman-in tempestuous weather, when a boat could not be put out, but with imminent danger of the lives of the men. It will therefore be very well to stipulate that the board the examining vessel. And if this should in any cases prevent an examination, it can afford no just ground of complaint; for prima facie, better is the right of the neutral than of the bellige rent vessel. Besides, the stipulation would be reciprocal. XXV. The following articles, beyond the quantities proper for the ship's use, may be deemed contraband of war: cannon, mortars, their carriages and beds, muskets, petards, match, ball, bombs, grenades, carcasses, cartridge-boxes, gunpowder, saltpetre, pikes. halberds, swords, belts, pistols, holsters, cavalry saddles and furniture, and, generally, all kinds of arms and warlike in-neutral party shall in no case be required to go on struments fit for the use of troops; and all these articles may be declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy; but the vessel in which they are laden and the residue of the cargo to be free. France will probably not desire to extend further the use of contraband, and especially not to comprehend timber for ship building, naval stores, and other articles for the equipment of ships. If, however, she urges an extension, then timber for ship building, tar, pitch, turpentine, rosin, copper in sheets, sails, and sail cloth, hemp and cordage, may be added; and, generally, whatever may serve directly and principally for the equipment of vessels. But iron in pigs and bars, timber for house frames, pine or fir planks and boards, staves, nails suitable for house building, coarse linens, and, generally, all other articles which, though occasionally or from necessity applicable to the equipment of ships, are not directly and principally prepared for that purpose. It is also probable that France will not desire to consider provisions as contraband, unless going to a place actually blockaded, and we ought strenuously to resist any other construction; but if what is said on this subject in the eighteenth article of our commercial treaty with Great Britain should induce France seriously and with earnestness to demand the like stipulation, it may be conceded; yet a modification may first be attempted, by proposing not only that if provisions be captured, they shall be promptly paid for, with a reasonable mercantile profit, freight, and demurrage, but that they shall not be captured at all unless going to a place actually blockaded, or to supply an invading army or hostile fleet, though in situations not actually forming an investment or blockade. XXVI. If, on the exhibition of the certificates or manifests of a ship's cargo, the property of an enemy, or contraband goods, be discovered, and the ship be consequently captured and carried into port, provision must be made to prevent embezzlement, waste, and destruction. XXVII. The usual stipulations in treaties, designed to prevent abuses by armed vessels, have ever been found inadequate; perhaps they do not admit of a complete remedy. If, however, any nation does not provide penalties and securities, whereby to restrain offenders and indemnify the injured, the nation itself ought to be responsible. Doubtless, the nation should be immediately responsible for all abuses committed by national ships. One abuse is the destruction or concealment of papers of captured vessels. A remedy for this seems practicable: the captors may be obliged to give a receipt for them upon a list of the papers; and they may also be sealed up with the seals of the captors and captured. The master and supercargo, being entrusted by the owners with the vessel and cargo, ought never to be separated from them. They may prevent waste and embezzlement, and, on the arrival of the vessel, will be ready for examination; and, also, to claim the property in behalf of the owners, and contest, as of right they may do, the legality of the capture. Bribery, or an attempt to bribe any one of the ship's company or passengers to depose to any fact tending to the condemnation of vessel or cargo, or putting any of them to torture for that or any other purpose, should absolutely procure her acquittal. But a still greater evil remains, and more difficult to remedy the improper institution of prize courts. Probably no provision can be explicitly made, other than that each party will take effec tual care that the judgments and decrees in prize causes shall be given conformable to the rules of justice and equity, and the stipulations of the treaty, and without any unnecessary delay, by But there is a very common regulation to pre-judges above all suspicion, and who have no manvent disorder and injury in stopping and examining neutral ships, which certainly is disregarded in practice, viz: That the examíning ship shall not approach the neutral within cannon shot, while her boat is sent to make the examination. It is a rule which would produce both inconvenience and delay, and in bad weather be impracticable, or very dangerous. The provision that only two or three men shall enter the neutral vessel is very proper, though, like many other salutary regulations, is not enforced by penalties on offenders. But instead of visiting the neutral, the other often requires the neutral to send an officer ner of interest in the cause in dispute. It would be some check on the judges in prize causes if their reasons for condemning were required to be stated, with the other proceedings, in writing; and copies of the whole should, if demanded, be delivered to the commander or agent of the captured vessel without the smallest delay, or, at furthest, within fifteen days after sentence pronounced, and sooner if practicable, and at the expense of the captors, (in case of condemnation,) not of the captured, who are otherwise sufficiently distressed. Prizes, as already observed, should be conducted into the ports of the party at war, or of an asso Relations with France. ciate in the war, and there adjudicated by the regular tribunals. The French have conducted their prizes into neutral as well as belligerent ports; and, when there was no Consul to try and condemn, leaving there the prizes, they have carried the papers to a distant place to find a French tribunal; and there, in the absence of the captured party, procured sentences of condemnation, and sold the prizes. The same mode of obtaining condemnation has been uniformly practised when they carried their prizes into the ports of an associate in the present war. But, without waiting for the result of this farcical trial, it has been common to unlade and sell the cargoes as soon as they reached a port. An unreasonable burden is imposed on the captured, in requiring them, if they think proper to appeal to a higher tribunal, to find sureties in large penalties, which, as strangers, it is impossible to procure. This evil demands redress. The crews are often stripped of their property, and even of their clothes, and turned ashore without money or provisions. Such inhuman pillage is disgraceful to the nation which permits, or does not, by adequate punishments, restrain it. The masters, supercargoes, other officers and seamen, should be allowed certain sums; the former to employ counsel to support their claims to the property captured, and also for their subsistence; and the seamen might have an adequate allowance of good provisions until they could find vessels returning to their own country. To admit masters and supercargoes into the courts to defend the property captured, when they have been previously stripped of their money, and all means of providing the legal assistance essential to a right defence, is to tantalize with the semblance of justice, while the substance is denied. XXVIII. If vessels of either party sail for a place actually blockaded by the other, without a previous knowledge of the blockade, every such vessel may be turned away, but not detained, nor her cargo, if not enemy's property, nor contraband, be confiscated, unless, after notice, she shall again attempt to enter. Nor should any vessel that may have entered prior to the blockade, be restrained from quitting such place with her return cargo; nor, if found there after the reduction of the place, should they be liable to any injury. XXIX. If a war should break out between the two nations, six months after the proclamation thereof may be allowed to the merchants and others of each nation, residing in the dominions of the other, for selling and transporting their goods and merchandise. And if, during that term, any thing be taken from them. or injury done them, by either party, or the citizens or subjects of either party, full satisfaction should be made. XXX. The articles of the treaty which you may conclude, as far as they respect compensation and payment for past injuries and contracts, should be permanent, until the objects thereof be fulfilled. So likewise the article to prevent the sequestration or confiscation of debts, and shares or moneys in the public funds, or in public or private banks, should endure, while on either side 6th CoN.-36 there is a subject on which to operate. The other articles of the treaty should terminate in ten or twelve years; a period as long as they will be likely to be mutually satisfactory. The following points are to be considered as ultimated : 1. That an article be inserted for establishing a board, with suitable powers, to hear and determine the claims of our citizens, for the causes herein before expressed, and binding France to pay or secure payment of the sums which shall be awarded. 2. That the treaties and consular convention, declared to be no longer obligatory by act of Congress, be not in whole or in part revived by the new treaty; but that all the engagements, to which the United States are to become parties, be specified in the new treaty. 3. That no guaranty of the whole or any part of the dominions of France be stipulated, nor any engagement made, in the nature of an alliance. 4. That no aid or loan be promised in any form whatever. 5. That no engagement be made inconsistent with the obligations of any prior treaty; and, as it may respect our Treaty with Great Britain, the instruction herein marked XXI, is to be particularly observed. 6. That no stipulation be made granting powers to Consuls or others, under color of which tribunals can be established within our jurisdiction, or personal privileges be claimed by Frenchmen, incompatible with the complete sovereignty of the United States in matters of policy, commerce, and Government. 7. That the duration of the proposed treaty be limited to twelve years, at furthest, from the day of the exchange of the ratifications, with the exceptions respecting its permanence in certain cases, specified under the instruction marked XXX. TIMOTHY PICKERING. DEPARTMENT OF STATE, Oct. 22, 1799. List of books and papers, delivered to Governor Davie for the use of the Envoys to the French Republic. 1. Chalmers's collection of Treaties between Great Britain and other Powers, 2 vols. 2. Complete copy of the Laws of the United States, 4 vols. 3. Correspondence between Mr. Jefferson, Secretary of State, and the French Minister, Mr. Genet, 1 vol. 4. Letter from T. Pickering, Secretary of State, dated January 16, 1797, to General Pinckney, Minister from the United States to the French Republic, with an appendix, containing correspondences with the French Ministers, Fauchet and Adet, 1 vol. 5. Documents (including General Pinckney's information of his mission) laid before Congress, the 16th of May, 1797, 1 pamphlet. 6. Instructions to, and proceedings of, the late Envoys, Pinckney, Marshall, and Gerry, 3 copies. 7. Mr. Gerry's letter of October 1, 1798, and correspondence with M. Talleyrand, 3 copies. Relations with France. 8. French originals of Mr. Talleyrand's communications, 3 copies. 9. Report of T. Pickering, Secretary of State, on Mr. Gerry's letter and communication, 3 copies. 10. Report of T. Pickering, Secretary of State, on French spoliations, laid before Congress, February 27, 1797, 1 copy. 11. Report of further spoliations, received September 6, 1798, from General Pinckney, manuscript. 12. Letter dated 12th May, 1799, from M. Talleyrand to Mr. Murray, containing the assurances. 13. Letter of credence to the French Directory, sealed with the seal of the United States. 14. One copy of the letter of credence. 15. Three sets of instructions for negotiating with the French Republic. 16. Form of the passport, or sea-letter, annexed to the treaty of February 6, 1798. 17. Printed sea-letter in four languages, as now used in the United States. 18. Papers on the affairs of St. Domingo: 1. Letter from General Toussaint, to the President of the United States, dated November 6, 1798; 2. Answer to ditto, from the Secretary of State, March 4, 1799; 3. Letter of instructions to Edward Stevens, Esq., Consul General, and marked No. 1, March 7, 1799; 4. Letter to Edward Stevens, Esq., No. 2, April 20, 1799; 5. Heads of regulations and points understood between the Governments of Great Britain and the United States; 6. Letter to Edward Stevens, Esq., No. 3, May 9, 1799; 7. Letter to Edward Stevens, Esq., No. 4, June 1; 8. Letter to Edward Stevens, Esq., No. 5, July 5; 9. President's proclamation for opening trade with St. Domingo. 19. Letter to General Desfourneaux, agent of the French Directory at Guadaloupe, declaring the terms on which trade might be opened with that island. 20. Letter of instructions to Samuel Cooper, Esq., sent to the Isle of France to propose terms for opening trade with that island. 21. Letter from Fulwar Skipwith, late Consul General of the United States at Paris, dated January 23, 1799, enclosing a letter from Mr. Talleyrand, dated 12th December, 1798, on the rôle d'équipage. 22. A cipher, for secret correspondence with the Department of State. 23. Personal passports for Judge Ellsworth and Governor Davie. 24. Passport for the frigate United States. 25. Letter to Judge Ellsworth and Governor Davie, mentioning the names of Consuls and agents of the United States in Spain, Portugal, and France. Mr. Ellsworth and Mr. Davie sailed from Newport, Rhode Island, on the 3d of November, having agreed to touch at Lisbon, before they made any port of France; arrived there on the 27th of November. Information of the revolution at Paris of the 18th Brumaire had just been received, and it was therefore thought expedient to remain long enough at that place to form some judgment of the consequences of that change in the French Government. Upon a conference on the 6th of December, the Envoys resolved on the measures detailed in the following letter to the Secretary of State: LISBON, December 7, 1799. SIR: We arrived at this place on the 27th ultimo. The late change in France, the circumstances of which we are informed will be fully detailed in Mr. Smith's despatches, and our desire to obtain a more accurate knowledge of the features and effects of this revolution before we entered that country, would have induced us to land in Holland, where we might join Mr. Murray. and be in a better situation to govern ourselves by circumstances; but Captain Barry apprehends it would hazard the frigate to attempt any port in Holland at this season of the year; we have, therefore, determined to sail immediately for L'Orient. From L'Orient we shall probably proceed to Paris, if we can be satisfied that our present letters of credence will avail us. You will doubtless consider, sir, of the expediency of sending us. with your first despatches, other letters of credence addressed to the Supreme Executive of France, or in a manner more particular, which may introduce us, if necessary, or sanction the progress we have made. We have the honor. &c.. OLIVER ELLSWORTH, W. R. DAVIE. Hon. TIMOTHY PICKERING, Mr. Ellsworth and Mr. Davie, being detained nine days by contrary winds, sailed on the 21st of December for L'Orient; a succession of heavy gales and continued bad weather then rendering it apparently impracticable to reach that place, they authorized Captain Barry to make any port in France or Spain, and arrived at Corunna on the 16th of January, and the next day sent the following letter to Ch. M. Talleyrand, Minister of the Exterior Relations of the French Republic. by a special courier: CORUNNA, January 17, 1800. The undersigned, Envoys Extraordinary and Ministers Plenipotentiary of the United States of America to the French Republic, have the honor to inform you of their arrival at this port, after a lapse of ten weeks since their leaving America. and the loss of four in a fruitless attempt to get from Lisbon (where they touched) to L'Orient. From hence they will proceed immediately to the confines of France by land. As they left the United States early in November, their letters of credence are, of course, addressed to "the Executive Directory of the French Republic." This circumstance being a matter of mere formality, they are induced to suppose that no objection will arise out of it, and that their letters of credence will have the same effect as they would have under an address adapted to the present distribution of the powers of the French Republic. Should the Government view this cir Relations with France. cumstance in the same light with the undersigned, they then request that passports may be granted for them and their suite to Paris, and that they may be forwarded by the courier charged with these despatches; and also that there may be granted, and that you would have the goodness to transmit, together with their letter to him, a like passport to William Vans Murray, Esq., at the Hague, who is joint Envoy Extraordinary and Minister Plenipotentiary, as before mentioned, with them. They pray you, sir, to accept the assurances of their high respect, OLIVER ELLSWORTH, WILLIAM R. DAVIE. MINISTER OF FOREIGN RELATIONS, &c. Captain Barry having received directions from the Envoys to wait the return of the courier to Corunna, in order to take their despatches for the Government, the following letter was written to the Secretary of State: BURGOS, February 10, 1800. SIR: We have the pleasure to enclose to you a copy of our letter No. 1, dated at Lisbon, and forwarded from St. Ubes. We were detained in the Tagus by contrary winds till the 21st of December, when we sailed for L'Orient, under the expectation of making that port in seven or eight days; but, on the 24th, we encountered a severe gale, which blew with little intermission until the 2d of January, at which time it was ascertained that we had drifted as far as latitude 50, and to the The following is the letter forwarded to Wil-west of Cape Clear. Observing that Captain Barliam Vans Murray, Esq., mentioned in the above CORUNNA, January 17, 1800. ry was extremely apprehensive of approaching any part of the French coast, on the Bay of Biscay, in bad weather, and as so much time had been already lost, we directed him to land us in any port of France or Spain that he could make with safety and convenience; he thought proper to choose the port of Corunna, and anchored in the Bay of Ares, a few leagues from that place, on the 11th of January. Being anxious to make the necessary preparations for our journey to Paris, and the wind continuing unfavorable for the sail DEAR SIR: We enclose to you a copy of our note to the Minister of Foreign Relations of the French Republic, from which you will learn our situation, and the steps we have taken to facilitate your progress and ours to Paris, where we hope soon to meet you for the accomplishment of a business which we all have so much at heart. Your letter of credence and your instructions are with With much respect and esteem, we are, dearing of the frigate to Corunna, we landed at the sir, your obedient servants, us. OLIVER ELLSWORTH, WILLIAM R. DAVIE. WILLIAM VANS MURRAY, Esq. village of Puente d'Eume, and immediately after our arrival at Corunna, despatched a courier to Paris, with a letter addressed to the Minister of Foreign Relations, desiring the necessary passports. (a copy of which is enclosed, marked A.) covering also a letter to Mr. Murray, a copy of which (marked B.) you will receive under this enclosure. The above Envoys, in pursuance of the plan which they had adopted of going to Paris by land, left Corunna on the 24th of January, and arrived The necessary arrangements were made to meet at Burgos on the 9th of February, where they met the courier at Burgos, or Victoria, and he fortuthe courier returning from Paris, with the follow-nately reached this place yesterday, a few hours ing answer from the Minister of Exterior Rela tions: PARIS, 11th Pluviose, (30th January,) 8th year of the French Republic. GENTLEMEN: I have received the letter dated at Corunna, which you have done me the honor to write. I regret exceedingly that an unpleasant and protracted voyage has so long delayed your arrival in France. You are expected with impatience and will be received with warmth. The form which has been given to your letters of credence will occasion no obstacle to the opening of a negotiation, from which I dare anticipate the happiest results. No time will be lost in transmitting to Mr. Murray the letter intrusted to my care, to which will be added the necessary passports. The requisite passports will also be forwarded to you. Agreeably to your desire, I confide this packet to the courier whom you have despatched. Receive, gentlemen, the assurance of my high consideration. CH. MAU. TALLEYRAND. Messrs. ELLSWORTH and DAVIE, Envoys, &c., of the United States. before our arrival, charged with the despatches (marked C.) from Ch. M. Talleyrand, Minister of Exterior Relations, enclosing the passports requested in our letter written at Corunna. We regret exceedingly the time that must be consumed in a long and tedious journey by land. in the most rigorous and unfavorable season of the year; but after the ineffectual attempt to go to L'Orient by water, this measure appeared indispensable, notwithstanding any difficulties with which it might be connected. We expect to leave this place to-morrow, and flatter ourselves with the hope of arriving in Paris about the first of March. We have the honor to be, &c., OLIVER ELLSWORTH, Hon. TIMOTHY PICKERING, The Envoys set out from Burgos on the 11th of February, and, taking the route by Bayonne, arrived in Paris on the 2d of March, where Mr. Murray had also arrived the preceding day. The following was delivered by Mr. Murray, as an extract from his journal: |