chandises which follow shall not be reckoned among con-
traband or prohibited goods ; that is to saj^, 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 un-
coined, tin, iron, lattin, 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
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 nourishment of mankind
and the sustenance of life ; furthermore, all kinds of cotton,
hemp, flax, tar, pitch, ropes, cables, 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 goods
whatever, which have not been worked into the form of
any instrument or thing prepared for war, by land or by
sea, shall not be 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 foregoing enumeration of contraband goods ; so
that they may be transported and carried in the freest
manner by the subjects of both confederates, even to
places belonging to an enemy, such towns or places being
only excepted, as are at that time besieged, blocked up or
invested."
The law of the 13th Nivose, in the 3d year, secures to
the treaties a full execution, and the arret of the committee
of publick safety, dated the 27th of the same month, trans-
mitted to you by colonel Monroe, bears evidence of the
entire execution of the article of our treaty which I have
just cited to you. The United States, therefore, in virtue
of these acts, may freely transport to England hemp, flax,
far, peltry, cordage, cables, sails, sail cloth, kc. and every
STATE PAPERS. 2a7
other thing proper for the construction or repair of ires*
sels, without apprehending any hindrance on our part ;
while bj the articles of the treaty with England, the Unit-
ed States cannot carry to us any of the articles proper for
the construction of vessels, since the English have the
power of seizing them. The United States have there-
fore granted to England a right which we have not, and
which in the course of the present war inclines the balance
in favour of England.
The 23d article of the treaty between the United States
and England, states that English vessels and those of the
United States shall be hospitably received in the respec-
tive ports of the two contracting nations — and article 24th
states, " It shall not be lawful Tor any foreign privateers,
(not being subjects or citizens of cither of the said parties)
who have commissions from any other prince or state in
enmity with either nation, to arm their ships in the ports
of either 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 purchase more provisions than
shall be necessary for their going to the nearest port of
that prince or state from whom they obtained their com-
missions." And article 25th, " It shall be lawful for the
ships of war and privateers belonging 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 ar-
rive at and enter the ports of the said parties, be detained
or seized, neither shall the searchers or other officers of
these 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 offi-
cers 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 mention-
ed in their commissions or patents, which the commanders
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 either of the said parties/ but if forced by stress of
weather, or the danger of the sea, to enter therein, pajr-
voiJ. ii. 33
2$8 AMERICAN
ticular care shall be taken to hasten their departure, and
to cause them to retire as soon as possible. Nothing in
this treaty contained shall however be construed or ope-
rate contrary to former and existing publick treaties with
other 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." But the 17th article of our
treaty states, that French ships of war, and those which
France shall have armed for war ; as also the vessels of
the United States or of their inhabitants, may conduct
their prizes into the respective ports of the two nations ;
that neither asylum or refuge shall be given in their ports
or havens to those who shall have made prize on the re-
spective inhabitants of the two countries, and if they are
forced to enter by tempest or dangers of the sea, they shall
be obliged to go out as soon as possible. If we compare
this article with those of the treaty made with Great Bri-
tain, it will be easily seen that during the present war it
is destroyed by the first. For although the 25th article of
the treaty with Great Britain states, " Nothing in this
treaty contained shall however be construed or operate
contrary to former and existing publick treaties with other
sovereigns or states," and we ought to infer therefrom,
that France, though not named, will always enjoy the ad-
vantages which article 1 7th of her treaty allows her : Yet
it is very clear that the English will have the right of
claiming the execution of the 23d and 24th articles of their
treaty with the United States ; that they will have during
the present war, the privilege of conducting their prizes
into the ports of the United States, and consequently the
stipulations of the 17th article of our treaty are destroyed.
Moreover this article contains this clause, " But the
two parties agree, that while they continue in amity, neither
of them will in future make any treaty, that shall be in*
consistent with this or the preceding article ;" which
seems to prevent the establishing of a new negotiation be-
tween the United States and France ; since in a new treaty,
France could not renounce the advantages secured to her
by article 17th of her former treaty, and it is possible that
they would be refused to her in virtue of that article.
Such,, sir, are the observations which I have thought it
my duty to present. I shall wait for your answer, in order
STATE t kPEHS.
!o traii-inii the treaty to the committee of publick safety
of the national convention. It has never doubted the at-
tachment of the American government towards France,
and I am convinced that the present i ircumstances will
furnish a new proof of their good intentions.
Accent, sir, tin; assurance, <^:c.
l\ A. ADET.
No. 27.
The Secretary of State to Mr. Ad( /, Minister Plenipotentiary
of the French Re pub lick. Department of State, July 6,
1795.
Sir, — I accept as a pledge of that harmony, which you
are anxious to cultivate between our two nations, your
letter of the 30th ult. received on the 1st. inst. at night.
Let it be our unvaried practice to suffer no suspicion to
ripen into an unfriendly sentiment, until it shall have been
imparted to each other; and let us repel with firmness the
artifice, by which ill affected persons, under the guise of
attachment to the French Republick, endeavour to embroil
it with the United States.
When you expressed to me on Monday last some uneasi-
ness, which the report of the contents of the proposed treaty
with Great Britain had excited in your breast, I the more
readily informed you of my intention to ask the President's
permission to furnish you with a copy, as I was convinced,
that an entire view of it would not only enable you to state
all -the parts objectionable to our ally, but would also re-
move the prejudices which detached representations might
occasion. Having delivered to you a copy, I am now to
examine the provisions which seem to you irreconcileable
with our engagements to France.
Upon this head, it has been often declared by the Pre-
sident of the United States, and is now repeated, that
those engagements shall not, with his assent, be infringed.
As far, therefore, as he is concerned, you need only prove,
at any time, that a given measure will infringe it ; and he
will not countenance that measure. The same, I am per-
suaded, may be affirmed of the other branches of our
government. But after a close scrutiny of the points which
alone you have selected for animadversion, it is not
QQ& AMERICAN
discerned that the rights of France are in any degree im-
paired.
hi saying this, I must call to your recollection the man-
ner in which the making of treaties is arranged by our
constitution. The senate advise and consent to their be-
ing made ; the President ratifies them ; and the courts are
afterwards at liberty to construe them, as particular cases
arise, requiring their decision. The opinions therefore of
the President are not obligatory on the courts. He judges
for himself; they judge for themselves ; and if in the in-
terpretation of the one or the other, the rights of the
French Republick are assailed, the accustomed modes
of remonstrance and negotiation will still be open ; and
the principles, upon which national redress is demanded,
will still have their force.
After this explanation, I proceed to state to you the
result of the President's reflections on your exceptions to
the proposed treaty.
These exceptions are, 1st, that the 23d and 24th arti-
cles of our commercial treaty with France are violated by
the 17th and 18th of the proposed treaty — 2dly, that the
1 7th article of the former is destroyed by the 23d, 24th
and 25th articles of the latter — and 3dly, that the last
sentence in the first paragraph of the 25th article of the
proposed treaty " appears to prevent a new negotiation
between the United States and France."
First, The essence of your first objection, as drawn
from the reasoning in your letter, is reducible to this
statement — By the treaty with France, hemp, flax, tar,
pitch, ropes, cables, sails, sail-cloths, anchors and parts
of anchors, masts, planks, boards, and beams of what
trees soever, and all other things proper for building or
repairing ships, shall not be reputed contraband of war;
but shall be reckoned among free goods, and may be
transported in the freest manner by the contracting par-
ties, even to places belonging to an enemy ; such only
excepted as are actually besieged, blocked up, or invested.
But the proposed treaty designates as contraband, timber
for ship building, tar or rosin, copper in sheets, sails, hemp
and cordage, and whatever may serve directly to the
equipment of vessels (unwrought iron and fir planks only
excepted) and they are declared to be just objects of con-
fiscation whenever they shall be attempted to be carried
3 i 1TE PAtKRS. CGI
to an enemy. From hence you conclude, thai the United
States may freely carry into England all things proper
tor the building or repairing of vessels, without fearing
ah\ obstacle on the part of France; while they can cany
none of them to France; and that they have thus granted
to England a right which France enjoys not, and which
in the course of the existing war inclines the balance in
favour of England.
The United States have ecrtainly opposed the exten-
sion of contraband, whenever the British government has
sought to swell the catalogue. But it never could be de-
nied, under the law of nations, and independently of a
treaty, that materials for the building and repairing of
vessels are contraband. The proposed treaty then does
not grant, but recognises only a right to Great Britain,
which even without that recognition she would have pos-
sessed and exercised.
This recognition might have been omitted or inserted,
without changing the nature of the subject ; though it was
more natural, in commercial arrangements, to particularize
the articles of contraband.
It was indeed anxiously desired, to diminish the list, as
much as possible. But if no reciprocity could accomplish
this end ; if no equivalent could be offered by us to Great
Britain, powerful enough to induce her to renounce her
Tights under the law of nations, what was to be done ?
Many reasons will occur, sir, why it was not to be ex-
torted by force : to become a party in the war, was nei-
ther our policy nor the wish of your Rcpublick : to be-
come a party in the war for a cause which the armed
neutrality itself never would have asserted, would have
been supported by no civilized nation.
The United States have therefore wilfully surrendered
no right, relative to contraband.
Nor is the treaty with France contravened by this ac-
knowledgment of contraband. It stipulates that if France
be at w r ar, and the vessels of the United States carry
naval stores to her enemy, French cruisers shall not cap-
ture them. The proposed treaty admits the right of Great
Britain to seize such vessels going to her enemy. The
inference is, that France has relaxed her strict rights, in
consideration that the United States have relaxed theirs
in this respect : but that Great Britain will not relax hers.
262 mwme&x
The treaty with France therefore remains uninfluenced
by the proposed compact with Great Britain.
The true light in which the subject is to be viewed, is
that which you have caught ; when you allude to the ef-
fect which the right of Great Britain to seize naval stores,
going from the United States to France, may have upon
her interest, while she continues bound not to seize like
stores, going from the United States to England.
Our treaty with France was entered into with a perfect
knowledge on both sides that they were striking out from
the class of contraband, articles which the law of nations
denominated such. They were both apprized, that if the
United States should be at war with Great Britain, the
shipping of France, carrying naval stores to Great Bri-
tain, could not be seized by American cruisers; while
the same shipping bringing naval stores to the United
States might be seized by British cruisers. They saw
therefore the reciprocity of the prohibition. Why then
was not the case which has now happened, being fore-
seen, guarded against ? Perhaps on account of this very
reciprocity. Perhaps from a belief that it was not over-
important. Perhaps, on the part of the United States,
from a confidence that their internal supplies would be
ample ; and on that of France, that their home resources,
their own shipping and convoys, would accommodate
them with those stores. Or more probably neither of the
contracting powers was disposed to cramp the commerce
of the other, but upon the most demonstrable necessity :
howsoever this may be, the proposed treaty does not
vary the situation of France, nor belter the rights of Great
Britain in one iota of contraband.
There was a time indeed, when France felt herself ab-
solved from the stipulation, that free ships make free
goods, because Great Britain by capturing hostile pro-
perty in American bottoms, rendered disadvantageous to
France to spare British property in those bottoms. But
the law of the 13th Nivose, in the 3d year, to which you
refer, has banished that mode of reasoning, and has creat-
ed a precedent for our mode.
Hitherto, however, I have spoken upon principles of
right* Upon any other principles, and more especially
upon those of hardship and injury to a friend, it shall be
a topick of the negotiation now opening between us. With
STA1I PAPHB,S. 203
the temper which will pervade the whole of it, I cannot
doubt that some modification may be devised ; and it may-
ted Irom the general treaty, so as not to be de-
J;r. ed by it.
Seco d, In my judgment you misconceive the proposed
when you imagine, that the English will have a
right to claim the execution of the 23d and 24th articles
of it, in derogation of the 17th article of our treaty with
France ; that is to say, that in the course of the present
w.ir they m.tv conduct their prizes, made from the French,
into the ports of the United States. They will not pos-
sess such a privilege during the present or any other war
with France. For " nothing in the proposed treaty con-
tained, shall be construed or operate, contrary to former
and existing publick treaties with other sovereigns or
states.'- The British plenipotentiary was here admon-
ished of our prior engagements, and of our determination
to postpone to them any new contract with Great Britain.
Our treaties wiih France arc saved by the general de-
scription, which was the most eligible form of expression ;
because it was shorter, and equally well adapted to com-
prehend all our treaties. It is the same form of expres-
sion with that which was adopted in the year 17CG, in the
treaty between France and Great Britain.
The 40th article of the last mentioned treaty, and the
25th of the proposed treaty are in substance alike ; and
yet it was clearly and properly understood, when the
French and English treaty was made, that our commer-
cial treaty with France was not in this respect shaken.
We have at least never complained of any infraction of
ours from this cause, and therefore are sincere in believ-
ing, that France can be as little affected by our treaty
with Great Britain, as the United States were by hers
with Great Britain.
In your quotation of the 23d article of the treaty with
Great Britain, you observe, that the vessels of the English
are to be received with hospitality in the ports of the
United States. They are the " ships of war," the pub-
lick navy, not the privateers, which are to be so received.
Now the British ships of war are not prohibited by our
treaty with France from visiting our ports, unless under-
certain exceptionable circumstances. From these they
are not released by the proposed treaty : because our-
2.64 AMERICAN
ireaty with France, which is a supreme law of the land-
is decisively contrary.
The 24th article of the proposed treaty is, with a very
small and unessential difference, the same with the 16th
article of the French treaty with Great Britain. And here
this remark occurs ; that the proposed treaty saves every
right of France, arising from our treaty of commerce ; hut
the treaty between France and Great Britain does not by
any general or particular expression save the rights of
the United States, which might stand in opposition to that
16th article. We have never remonstrated ; because we
always thought ourselves secure under the faith of France
and the law of nations.
Third, Upon the third and last head of objection, which
you urge against the proposed treaty, little need be said.
You shall continue to enjoy your rights under the 17th
article of our treaty with France. We will not ask you
to renounce the advantages which that article assures to
you. The prohibition, on which you lay so much stress,
is not against past but future treaties. If a new treaty of
commerce with France, including the same matter with
the old one, would be prevented by the 25th article, the
consequence may be easily avoided, by declaring, that so
much of the old one, as is connected with any particular,
for which it may be desirable to retain a priority shall
remain in force. This is a remedy so obvious, that I
flatter myself, it will remove any difficulty in the way of a
new negotiation.
Should an embarrassment still hang upon these points,
I must entreat you to afford me an opportunity of meeting
them before your communications are despatched to the
committee of publick safety.
I have the honour to be, sir, &c.
EDM. RANDOLPH.
No. 23.
Mr, Pickering, Secretary of War, charged with the De~
partment of State, to Mr. James Monroe, Minister Pleni-
potentiary at Paris, Department of State, September
12, 1795.
Sir, — The office of Secretary of State being at present
vacant by the resignation of Mr. Randolph, I have it in
- j v l ! i L*ERS. -'-â– '
Command from the President to acknowledge your letti re
dated November 7th, 1794, January 13, February l -\ 10,
March 6, 7, 1 -J. 13, May 7, 17, June 11 and 2C and
to communicate such information as the present state ot
things appears to require.
You have already been furnished with a copy of th(
treaty lately negotiated between the United States and
Great Britain ; but lest that should have miscarried, you
will find another enclosed. This treaty has, after the most
mature deliberation, been ratified by the President on the
condition proposed by the Senate, and has been transmit-
ted to London. On 'the presumption that it will receive
an equivalent ratification on the part of Great Britain, and
thus become a compact between the two nations, it is pro-
per, that you should be possessed of the opinions of the
government, especially as it appears probable from your
letters and from the movements of disaffected persons here,
that unfavourable impressions upon the government and
people of France may be apprehended. As we have ever
been most sincerely desirous of cultivating friendship with
that nation, the most prompt and candid measures were
taken in every stage of the negotiation to produce tran-
quillity and satisfaction, which the rules prescribed by
custom in such cases would justify or permit : the result
now made publick will evince that the rights of France,
whether founded on the laws of nations or their treaties
with us, remain unviolated and unimpaired.
It is already known to you, that Mr. Jay was specially
instructed by'thc President to stipulate nothing with Great;
Britain contrary to the engagements of the United States
to France. This part of the President's instructions was
officially communicated to Mr. Fauchet, the minister of the
Republick, and independently of the obligation impressed
upon our envoy, the honour of the government became
pledged to refuse the ratification of any article derogatory
from our engagements to France, which might be inadver-
tently admitted by our negotiator.
Accordingly, soon after the decision of the Senate had
been given, and previous to the ratification by the Presi-
dent, Mr. Adet, the present minister, was furnished with a
copy of the treaty and requested to communicate his ob-
servations thereon. A copy of his letter and of the reply
of the Secretary of State are enclosed, by which you will
vol. n. 34
566 AMERICAN
perceive the nature of the objections, which were urged,
and that such explanations were immediately given and
such constructions adopted, as must have been satisfactory.
We infer this no less from the explanations themselves,
than from the subsequent silence of the minister.
The late conduct of Great Britain in detaining the ves-
sels of the United States laden with provisions and bound
to France is however calculated to create inquietude, it is
therefore proper to explain the 18th article more particu-
larly than Mr. Randolph has done ; especially as this part,
of the treaty has been misrepresented in this country, as
being unfriendly to France.
It cannot be doubted, that the United States have it
powerful interest in diminishing by treaty the catalogue ot
contraband articles as much as possible ; to this they are
invited no less by their pacifick policy, which inclines
them to cultivate and extend neutral rights, than by the-
operation of the law of nations upon several valuable ar-
ticles of export, the produce of our own country. No na-
tion can be suspected of insincerity in the pursuit of objects
connected with its immediate interest ; accordingly the
most zealous exertions have been uniformly made by the
United States to establish principles favourable to free
commerce. A time of war was however most unfavoura-
ble for this purpose, especially when the object, as in the
present case, was to induce a powerful maritime nation, to