and might give cause for war: but even in such case, its act of public renunciation, being an act within its competence, would not be a void, but a valid act, and other nations, whose rights might thereby be beneficially affected, would so regard it. That it had become impossible for the United States to save their commerce from the depredations of French cruisers, but by resorting to defensive measures; and that, as, by their constitution, existing treaties were the supreme law of the land, and the judicial department, who must be governed by them, is not under the control of the executive or legislative, it was also impossible for them to legalize defensive measures, incompatible with the French treaties, while they continued to exist. Then it was that they were formally renounced, and from that renunciation there resulted necessarily a priority in favor of the British treaty, as to an exclusive asylum for privateers and prizes. A right indeed which she has made little use of, and with respect to which it would be unconsequential, during the remainder of the present war, whether she or France possessed it; but, as it was a vested right, neither the Government of the United States, or their ministers, could, with good faith, stipulate to France a right inconsistent with it. To the still further suggestion, that the laws of nations admitted of a dissolution of treaties only by mutual consent, or war: It was remarked by the undersigned that their conviction was clearly otherwise and that Vattel, in particular, the best approved of modern writers, not only held that a treaty violated by one party might for that reason be renounced by the other, but that, where there were two treaties between the same parties, one might be rendered void in that way, and the other remain in force; whereas, when war dissolves, it dissolves all treaties between the parties at the time. It appearing, however, to be the ultimate opinion of the ministers of the French republic that it did not comport with the honor of France to be deprived of that right, and at the same time to be called upon for compensation, the undersigned, solicitous for the honor of France, as well as that of America, devised, and offered as their last effort, the written proposition above alluded to, and which, it was conceived, did essentially remove the difficulty. Its object was to suspend the payment of compensation, a consideration of much weight in the estimate of the United States, until France could be put into complete possession of the privileges she contended for, and at the same time to give that security which a great pecuniary pledge would amount to for her having the privilege as soon as it could bet given with good faith, which might perhaps be in a little more than two years, and at any rate within seven. Accept, &c. O. ELLSWORTH, Messrs. Bonaparte, Fleurieu, and Roederer, Ministers Plenipotentiary of the The ministers plenipotentiary of the French republic have received the note of the 23d of July, 1800, (4th Thermidor, 8th year,) which the en voys extraordinary and ministers plenipotentiary of the United States of 'America have taken the pains to address to them. This note has two objects: The first is to resume the answers which have been made by the ministers plenipotentiary of the United States to certain reflections presented to them by the ministers plenipotentiary of France, in two anterior conferences, on the subject of the right of asylum in the ports of the United States and of France, which had been reciprocally and exclusively assured to the privateers of each of the two nations, for their ships and prizes, by the treaty of 1778-a right which the ministers plenipotentiary of the United States have pretended to be abrogated between France and the United States, and established, to the prejudice of France, between the United States and England. The second object of the note is to explain the motives of the proposition made by the American ministers in the last conference, and tending to stipulate that the indemnities which should be due to the United States should not be paid until the United States should have offered to the French republic an article stipulating the free admission in the ports of each of the two States of the privateers and prizes of the two parties, to the exclusion of their enemies, and likewise that this indemnity should not be paid unless such article should be offered in seven years. This article to have the same effect in point of priority as a similar stipulation had in the treaty of 1778. Relative to the first object, the French ministers are obliged to repeat, that their instructions being grounded on the perfect acknowledgment of ancient treaties, it is impossible to subscribe to the annihilation of a privilege assured by the treaty of 1778 to the privateers of each of the two nations in the ports of the other, and, above all, to the establishment of this privilege in the mutual relations of the United States and Great Britain. But, convinced that the true interest of France is strictly connected with the prosperity of the United States, and the prosperity of the United States with their perfect independence; convinced that the exclusive right, granted by one nation to the privateers of another, to bring their prizes into their ports, is of a nature to compromit its tranquillity, and by that its independence, either because in a number of cases it will give just cause of complaint, or at least of umbrage, to the Powers upon whom such prizes are made, they hasten to repeat, at the same time, to the American ministers, that, in case of a reconciliation, they will make it a duty to insist with their Government upon the proposition which they have already made, to abolish all exclusive right of entry in their respective ports, for the privateers of the two nations, with their prizes, and to reduce themselves, for them, to the right of bringing in their prizes in concurrence with the most favored nation. They believe that the French Government would be honored by the sacrifice of a privilege which can be prejudicial to its ally: but that it would be disgraced in depriving itself of it, to the advantage of its enemy, and without advantage to the American independence. The French ministers do not find, in the note of the 2sd July, 1800, any reason to determine them to consider the treaties made between France and the United States as broken. The act of Congress of the 9th of July, 1798, is the declaration of one party but the treaty, being the work of two, one alone cannot destroy, otherwise than by war and victory, that which is the engagement of two. When Congress declares, on one side, that France has contravened the treaties, and that they are exonerated from them; and when, on the other, the French Government declares that it has conformed to the treaties, that the United States have alone infringed them, and it wills their execution, where is the law, where is the tribunal, which authorizes the exoneration, rather the execution ? While there is a dispute between two contracting parties respecting the existence or annihilation of a treaty, there cannot result from the annihilation pretended by one of the parties any right to the advantage of a third. If France had declared the treaty null, and the United States had maintained that it was entire, England could not have been authorized to say to America, I enter upon the rights of France. This is beyond doubt. The declaration of a rupture made by one party does not operate a rupture. These observations are conformable to the doctrine of all publicists. The opinion of Vattel cannot be understood but of the nullity in law, and not of the nullity in fact, and it is the nullity in fact which can alone give an opening to the rights of a third party for anteriority. These observations likewise flow from the nature of things. If it is free to one contracting party to disengage itself when it pleases, in virtue of its own proper judgment, upon facts, upon men, upon things, there is no more obligation attached to treaties; the word ought to be erased from all languages. If a right of anteriority can be destroyed, to the prejudice of the nation who possesses it, by the sole act of the party who has recognised it, and if, by this sole act, the right passes to a third party, it must be recognised as a principle that a nation who makes a second treaty raises an enemy to her with whom she has made a first, and that she assures the spoil to this enemy the moment she has a mind to act in concert with her. The ministers plenipotentiary of the French republic will not push further their observations. Those which they have repeated suffice to establish the rights of France, and to her the honor of a sacrifice, which she would make in renouncing the exclusive right of entry in the ports of America, for the French privateers accompanied with their prizes. Passing to the second object of the note, the French ministers observe that the proposition of the American ministers offers to the republic at a distant time the hope of exclusive advantages, of which they think she ought not to be jealous, and for the present, and perhaps for seven successive years, a humiliating forfeiture of these rights, and a shameful inferiority with regard to a State, over which she had acquired these privileges, by the services she had rendered to America when it made war with such State. When the ministers of France can subscribe to a condition unworthy the French nation, the price which they would put upon their humiliation would not be the continuance of a subjection, which they consider to be contrary to the interest of the United States. The dependence of her ally cannot be for her an indemnity for a national suffering. The French ministers, believing it to be their duty to insist with their Government upon the immediate renunciation of a privilege well acquired, it would be contradictory that they should provide for its return at a distant time. They have the honor to assure the ministers plenipotentiary of the United States of their high consideration. J. BONAPARTE. REDERER. Messrs. Bonaparte, Fleurieu, and Roederer, Ministers Plenipotentiary of the French Republic, to Messrs. Ellsworth, Davie, and Murray, dated August 11, 1800. [TRANSLATION.] PARIS, 23d Thermidor, year 8. The ministers plenipotentiary of the French republic have received from their Government the new instructions, for which they thought they were obliged to ask, when they learned, by the unexpected note of the ministers plenipotentiary of America, that the United States held their treaties with France annulled: and that it was impossible for them to recognise them with the advantages attached to their date. The French ministers hasten to present to the American ministers the reflections and propositions which the present state of the negotiation appears to them to require. In the first place, they will insist upon the principle already laid down in their former note, viz. that the treaties which united France and the United States are not broken; that even war could not have broken them: but that the state of misunderstanding which has existed for some time between France and the United States, by the act of some agents, rather than by the will of the respective Governments, has not been a state of war, at least on the side of France. If the reflections presented on this subject in the note of the French ministers of the 8th of the present month, suffice to lead the ministers of the United States to the acknowledgment of the treaties, the first consequence which will result from them, and which the ministers of France will be eager to recognise anew, is, that the parties on both sides ought to be compensated for the damages which have been mutually caused by their misunderstanding. The ancient treaties being maintained in their integrity and anteriority, it will be just and expedient to terminate, even in remembrance, altercations which have arisen in the course of relations which they have established. Thus, the first proposition of the ministers of France is to stipulate a full and entire recognition of the treaties, and the reciprocal engagement of compensation for damages resulting on both sides from their infraction. If the American ministers should continue to think it impossible for them to acknowledge the treaties with the advantage of their date, if it should be proved that France unseasonably flattered herself with a friendship not interrupted with the United States, that, uselessly, she would consecrate her fidelity in subscribing to repair the infractions committed by some agents and corsairs, the French Government would consent to the abolition of the treaties with so much the less repugnance, as the ministers of America appear to regard some dispositions of them as not compatible with the perfect independence of the United States. Such is that of which they speak in the note of the 18th Floreal, (8th May,) when they express the desire to reduce the privateers of foreign nations to simple hospitality in the United States, in order to free their commerce from all restraint, and their policy from all relation with the interests and passions of the belligerent Powers. The French Government is convinced that the most perfect independence is necessary to the United States, to raise them to their high destinies; and it would willingly make a sacrifice of advantages, which might compromit that independence, however well they may be acquired, with whatever reciprocity, and with whatever services they may have been purchased. In consequence, they declare that the reclamation of treaties, and the offer to repair their execution, if it had taken place-a reclamation dictated wholly by a scrupulous fidelity to engagements, advantageous besides to the United States, would easily give place to views conformable to the interest of the independence and security which employs them. They declare, particularly, that France would not refuse to give up the exclusive privilege which their privateers enjoyed for the introduction of their prizes into the ports of the United States. At all times, the ministers of France, in acquiescing in the annihilation of treaties, cannot conceal that the act by which the United States have declared their nullity has been a just provocation of war; that the hostile acts which have followed this provocation, those which have been multiplied with so much eclat, even since the French Government had caused every pretext of complaint on the part of the United States to cease, have been war itself; that France disguised the true state of her relations with the United States, when she recognised them as a simple, temporary, and reparable misunderstanding. In a word, that a new treaty between France and the United States ought, before all, to be a treaty of peace: from this observation, therefore, it appears to them that the two Governments should no longer occupy themselves with their respective accounts, considering that the right of war dispenses with repairing its ravages, and that the honor of national arms forbids even to be employed about them, since that State which should have a balance to pay to the other, in discharging it, should acknowledge a conqueror, and would purchase peace. Finally, it ought well to be understood, that, in acquiescing in the abolition of the treaties, the French Government would mean to renounce only a privilege which they secured to France, and that it will never consent to be placed on a line inferior to that of any other Power, in their relations to the United States. It would renounce, without pain, the exclusive advantages which it possessed, but cannot consent that others should exercise them to its prejudice. It would abdicate, without regret, a right which it had acquired, but will never acknowledge that of another founded on the ruin of its own. That which it owes to its dignity, it owes, and even wishes it for the prosperity of the United States. If the United States. relieve themselves from obligations, which perhaps bore heavy on their independence, this ought to be to establish it more perfect than ever, and not to bend it down in an opposite direction. The second proposition of the ministers of France, in case that which precedes should not be accepted, would then be the abolition of ancient treaties-the formation of a new treaty, in which the French nation, laying aside a privilege disagreeable to the United States, would treat for its political and commercial relations, as the most favored nation, and in which there would be no demand of compensation. Thus, the propositions which the French ministers have the honor to communicate to the ministers plenipotentiary of the United States are reduced to this simple alternative: Either the ancient treaties, with the privileges resulting from priority, and the stipulation of reciprocal indemnities: Or a new treaty, assuring equality without indemnity. |