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sort to the French Government, directly, for the fulfilment of its contracts.
Although the reparation for losses sustained by the citizens of the United States, in consequence of irregular or illegal captures or condemnations, or forcible seizures or detentions, is of very high importance, and is to be pressed with the greatest earnestness, yet it is not to be insisted on as an indispensible condition of the proposed treaty. You are not, however, to renounce these claims of our citizens, nor to stipulate that they be assumed by the United States as a loan to the French Government.
In respect to the alterations of the commercial treaty with France, in the two cases which have been principal subjects of complaint on her part, viz. enemies property in neutral ships, and the articles contraband of war; although France can have no right to claim the annulling of stipulations at the moment when by both parties they were originally intended to operate ; yet if the French Government press for alteration, the President has no difficulty in substituting the principles of the law of nations, as stated in the 17th and 18th articles of our commercial treaty with Great-Britain, to those of the 23d and 24th articles of our commercial treaty with France : and in respect to provisions, and other articles not usually deemed contraband, you are to agree only on a temporary compromise, like that in the 18th article of the british treaty, and of the same duration. If, however, in order to satisfy France now she is at war, we change the two important articles before mentioned, then the 14th article of the french treaty, which subjects the property of the neutral nation found on board enemies ships' to capture and condemnation, must of course be abolished.
We have witnessed so many erroneous constructions of the treaty with France, even in its plainest parts, it will be necessary to examine every article critically, for the purpose of preventing, as far as human wisdoın can prevent, all future misinterpretations. The kind of documents necessary for the protection of the neutral vessels should be enumerated and minutely described; the cases in which a sea-letter should be required may be specified;
the want of a sea-letter should not of itself be a cause of contiscation, where other reasonable proof of property is produced; and where such proof is furnished, the want of a sea-letter should go no further than to save the captor from dainages for detaining and bringing in the neutral vessel. The proportion of the vessel's crew which nay be foreigners should be agreed on. Perhaps it will be expedient to introduce divers other regulations conforniably to the marine laws of France. Whenever these are to operate on the commerce of the United States, our safety requires that, as far as possible, they be fixed by treaty.
And it will be desirable to stipulate against any er post facto law or regulation, under any pretence whatever.
Great-Britain has often claimed a right, and practised upon it, to prohibit neutral nations carrying on a commerce with her enemies which had not been allowed in time of peace.
On this head, 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 haye been committed on the commerce of neutrals, and especially of the United States, by the citizens 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 the 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 according 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. And no commercial right whatever should be abandoned which is secured to neutral powers by the european law of nations.
The foregoing articles being those which the French Government has made the ostensible grounds of its principal complaints, they have naturally been first brought into view. But the proposed alterations and arrangements suggest the propriety of revising all our treaties with France. In such revision, the first object that will attract your attention, is the reciprocal guaranty, in the eleventh article of the treaty of alliance. This guaranty we are perfectly willing to renounce. The guaranty, by France, of the liberty, sovereignty, and independence of the United States, will add nothing to our security ; while, on the contrary, our guaranty of the possessions of France in America, will perpetually expose us to the risque and expense of war, or to disputes and questions concerning our national faith.
When Mr. Genet was sent as the minister of the French Republic to the United States, its situation was embarrassed, and the success of its measures problematical. In such circumstances it was natural that France should turn her eye to the mutual guaranty : and accordingly it was required, in Mr. Genet's instructions, to be “ an essential clause in the new treaty,” which he was to propose : and on the ground
“ that it nearly concerned the peace and prosperity of the french nation, that a people whose resources increase beyond all cal. culation, and wh nature had placed só near their rich colonies, should become interested, by their own engagements, in the preservation of those islands." But at this time, France, powerful by her victories, and secure in her triumphs, may less regard the reciprocal guaranty, with the United States, and be willing to relinquish it.
As a substitute for the reciprocal guaranty may be proposed a mutual ronunciation of the same territories and possessions, 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 .Mr. 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 gua-, ranty ; of course the casus fæderis can never occur except in a defensive war. The nature of this obligation is understood to be, that when a war really and truly defensive exists, the engaging nation is bound to furnish an effectual and adequate defence, in co-operation with the power attacked : whence it follows, that the nation may be required, in some circumstances, to bring forward its whole force. The nature and extent of the succours demandable not being ascertained, engagements of this kind are dangerous on account of their uncertainty : there is always hazard of doing too much or too little, and of course of being involved in involuntary rupture.
Specific succours have the advantage of certainty, and are less liable to occasion war. On the other hand, a general guaranty allows a latitude for the exercise of judgment and discretion.
On the part of the United States, instead of troops or ships of war, it will be convenient to stipulate for a moderate sum of money or quantity of provisions, at the option of France : the provisions to be delivered at our own ports, in any future defensive wars. of money, or its value in provisions, ought not to exceed two hundred thousand dollars a year, during any such wars. The reciprocal stipulation, on the part of France, may be to furnish annually the like sum of money, or an equivalent in military stores and cloathing for troops, at the option of the United States, to be delivered in the ports of France.
Particular caution, however, must be used, in discussing this subject, not to admit any claims, on the ground of the guaranty, in relation to the existing war; as we do not allow that the casus foederis applies to it. And if the war should continue after your arrival in France, and the question of the guaranty should not be
mentioned on her part, you may yourselves be silent on the subject, if you deem it most prudent.
It will be proper here to notice such articles of the treaty of amity and commerce, between the United States and France, as have been differently construed by the two goveruments, or which it may be expedient to amend or explain.
ARTICLE 2. The assent of the United States, in their treaty with Great-Britain, to the doctrine of the law of nations respecting enemies' property in neutral ships, and ship timber and naval stores, and in some cases provisions, as contraband of war, the French Government has chosen to consider as 'a voluntary grant of favours, in respect to commerce and navigation, to Great-Britain, and that consequently the same favours have become common to France. This construction is so foreign from our ideas of the meaning and design of this article, it shews the necessity of reviewing all the articles, and however clear they may appear, of attempting to obviate future misconstructions, by declaratory explanations or a change of terms.
ARTICLE 5. France has repeatedly contended, that the imposition of fifty per cent. per ton, on french vessels arriving in the United States, is contrary to the fiftharticle of the treaty. The arguments in support of this pretension are unknown; but it is presumed to be unfounded. The reciprocal right of laying“ duties or imports of what nature soever,” equal to those imposed on the most favoured nations, and without any other restrictions,
to be clearly settled by the third and fourth articles. The fifth article appears to have been intended merely to define or qualify the rights of american vessels in France. It is however desirable that the question be understood, and all doubt concerning it removed. But the introduction of a principle of discrimination between the vessels of different foreign nations, and in derogation of the powers of Congress to raise revenue by uniform duties on any objects whatever, cannot be hazarded. The naturalization of french vessels will of course be considered as inadmissible.