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The general terms too in which this decree is conceived, threatened but too certainly the mischiefs it has generated, and the abuses which have been practised under it. Neutrals are to be treated , as they shall permit the English to treat them. No rule extracted from the practice of England is laid down, which might govern the cruisers of France, or instruct the vefsels of neutrals. principles are stated manifesting the opinion entertained of the treatment received from England, which might enable a neutral to controvert that opinion, and to show that the English were not permitted to treat its flag as was supposed by the government of France

. To judge from the decree itself, from any information given concerning it, or from the practice under it, those who were to be benefited by its abuse were to decide in what manner it hould be executed ; and the cruiser who should fall in with a valuable vessel had only to consult his own rapacity, in order to determine whether an English privateer, meeting a vessel under fimilar circumstances, would capture and bring her into port. Multiplied excesses, and accumulated vexations, could not but have been apprehended from such a decree; and the fact has realized every fear that was entertained concerning it. It has been construed even in Europe to authorize the capture and condemnation of American vessels for the single circumstance of their being destined for a British port. At no period of the war has Britain undertaken to exercise such a power. At no period of the war has she asserted such a right. It is a power which prostrates every principle of national sovereignty, and to which no nation can submit, without relinquishing at the same time its best interests, and facrificing its dearest rights. The power has been exercised by France on the rich and unprotected commerce of an ally, on the presumption that that ally was sustaining the same injuries from Britain, at a time when it is believed that the depredations of that nation had ceased, and the principle of compensating for them had been recognised.

In the West Indies similar depredations have been experienced. On the 1st of August 1796, the special agents of the Executive Directory to the Windward Isands decreed, that all vessels loaded with contraband Mould be seized and confiscated for the benefit of

1

the captors.

On the 7th Frimaire, 5th year of the French republic, one and indivisible (27th November 1796), the commission delegated by the French republic to the Leeward Islands resolved that the captains of French national vessels and privateers are authorized to ftop and bring into the ports of the colony American vessels bound 10 English ports, or coming from the said ports.

On the 19th Pluviose, 5th year of the French republic, one and indivisible (February 1st, 1797), Victor Hugues and Lebas, the special agents of the Executive Directory to the Wind

ward

ward Islands, passed a decree, subjecting to capture and confifcation neutral vessels destined for the Windward and Leeward Islands of America delivered up to tho English, and occupied and defended by the emigrants. These ports are said to be Martinico, St. Lucie, Tobago, Demerara, Berbice, Essequibo, Port-auPrince, St. Mark's, l'Archaye, and Jeremie. The decree also fubjects to capture all vefsels which have cleared out for the West Indies generally.

The underligned will not detain you, Citizen Minister, for the purpose of proving how directly and openly these decrees violate both the law of nations and the treaty between France and the United States,

They have been executed on the officers and crews of the captured vessels' in a manner by no means calculated to’initigate their rigour.

The decree of the 14th of Meslidor was soon followed by another which has spared but little of the American commerce, except what has fortunately escaped the pursuit of the cruifers of France. On the 12th Ventose, 5th year (2d March 1797), the Executive Directory, considering the treaty of amity, com. merce, and navigation, concluded at London the 19th November 1794, between the faid United States and England, as containing concessions of privilege to Britain, which, under the treaty of February 1778, might be enjoyed by this republic alfo, proceeds to modify the treaty between France and the United States, by declaring enemies goods in American bottoms liable to capture and confiscation, by enlarging the list of contraband, and by fubje&ing to punishment as a pirate any American citizen holding a commillion given by the enemies of France, as well as every seaman of that nation, making a part of the crew of enemies ships. The decree next proceeds to exaa from American fhips, papers which had been inade neceffary to establish the neutrality of foreign vessels generally by the ordinance of the 26th of July 1778, but which had never been considered as applying to the United States, which required papers their vessels could not be supposed to possess, and which thie treaty between the two nations was supposed to have rendered unnecessary.

The basis taken by the Executive Directory, on which to rest their modification of the treaty of the 6th of February 1778, is, that by the treaty of the 19th of November 1794, particular favours in respect of commerce and navigation have been granted to England.

It has been demonstrated that no particular favours in respect of commerce or navigation have been granted to England. That treaty has been shown only to recognise, regulate, and moderate the exercise of the rights before pofTefTed, and before openly acknowledged to be poslesfed-rights which France and America had

reciprocally reciprocally ceded to each other, without requiring, as a condition of the cellion, that either should compel England to form a similar ftipulation.

But to admit for a moment that the treaty with England might be confidered as ftipulating favours not before poffefled, yet the American government did not so understand that treaty, and had manifested a disposition to modify, by coinmon consent, its relations with this republic, in such a manner as to reinstate a rule which has been voluntarily changed. It cannot but be fincerely regretted, because it seemed to indicate an unfriendly temper, that France has deemed it more eligible to establish by force, in oppofition to her treaty, a principle which the deemed convenient, than to fix that principle on the fair basis of mutual and amicable agreement.

But the clause under which these modifications are justified is in these words: “The Most Christian King and the United States engage mutually not to grant any particular favour to other nations, in refpe&t of commerce and navigation, which shall 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 compepsation, if the conceflion was conditional." If these ftipulations unequivocally amounted to the grant of favours, still the grant is not gratuitous. The concessions on the part of the United States are made on condition of similar con.' ceflions on the part of Britain. If, therefore, France chooses to consider them a modifications of the treaty of 1778, she can only do it by granting the reciprocal condition; on this supposition she has either of the rules at her election, but she cannot vary from the first without the compact on her part to grant the reciprocal ftipulation. Such a compact is in the nature of a national treaty.

But the rules laid down in the decree of the 12th Ventose; 5th year (March 2d, 1797), as founded on the 17th, 18th, and 2ut articles of the treaty of the 19th of November 1794, are materially variant from those articles. To demonstrate this it is only necessary to contrast the rules of the decree with the articles of the treaty on which those rules are said to be founded. Articles of the Treaty of the 19th November 1794, as quoted by the

Direttory. Art. 17. “It is agreed that in all cases where vesels shall be captured or detained on just fufpicion of having on board enemies property, or of carrying to the enemy any of the articles which are contraband of war, the raid veftels ihall be brought to the nearest of most convenient port; and if any property of an enemy should be found on board such vessel, that part only which belongs to the enemy shall be made prize, and the vessel shall be at liberty to

proceed

proceed with the remainder without any impediment. And it is agreed that all proper measures shall be taken to prevent delay in deciding the cases of ships or cargoes so brought for adjudication ; and in the payment or recovery of any indemnification adjudged or agreed to be paid to the owners or masters of such thips.”

Rules ofiablished by the Arréte of the Direttory. Rule 1. “ According to the seventeenth article of the treaty of London, of the 19th of November 1794, all merchandise of the enemy, or merchandise not sufficiently proved to be neutral, laden under the Ainerican flag, fhall be confiscated, but the vessel on board of which it shall be found, shall be releafed and restored to the owner. It is enjoined on the commillaries of the Executive Directory to accelerate by all the means in their power the decision of contests which thall arise either on the validity of the prize-cargo, or on the freight and demurrage.

According to the article, when on just suspicion of having on board eneinies property, or of carrying to the enemy contraband of war, a vessel shall be brought into port, that part only which belongs to the eneiny shall be niade prize, according to the article: then the fact, whether the property does or does not belong to an enemy is to be fairly tried. The party who would establish the fact must prove it. The captor mult show the justice of the sufpicion on which the capture or detention was founded. The burden of the proof rests on him. If in truth and in fact the prom perty does not belong to an enemy, or is not proved to belong to an enemy, it must be discharged. But the rule pursues a different course. "The rule declares that merchandise of the enemy, or not fufficiently proved to be neutral, laden under the American flag, shall be confiscated. The burden of the proof is shifted from the captor to the captured. The question to be tried is not solely, whether the merchandise be in fact the property of an enemy, but also whether it be sufficiently proved to be neutral. The sufficiency of this proof is to be ascertained, not by general and satisfactory testimony, not by the great principle of truth and the common understanding of mankind, but by the exhibition of certain papers demandable at the will of one of the parties, and in the postellion of the other. This may be a regulation which France chooses to establish ; but certainly it is a regulation ellentially variant from the article it professes to resemble.

Art. 18. « In order to regulate what is in future to be esteemed contraband of war, it is agreed that under the said denomination 1hall be comprised all arms and implements serving for the purposes of war, by land or by sea ; as cannon, muskets, mortars, petards, bombs, grenades, carcaffes, faucisses, carriages for cannon, musket rests, bandoliers, gunpowder, match, faltpetre, ball,

pikes, swords, head-pieces, cuirasses, halberts, larices, javeliris, horse furniture, holsters, belts, and generally all other implements of war; as also timber for ship-building, tar, or rosin, copper in fheets, fails, hemp, and cordage, and generally whatever may serve dire&tly to the equipment of vessels, unwrought iron and fisplank only excepted.”

Rule 2. “ According to the eighteenth article of the treaty of London, of the 19th of November 1794, to the articles declared contraband by the twenty-fourth article of the treaty of the 6th of February 1778, are added the following articles :

“ Timber for fhip-building, pitch, tar, and rofin, copper in Meets, fails, hemp, and cordage, and every thing which serves direaly or indire&ly for the armament and equipment of vessels, unwrought iron and fir planks excepted. These several articles shall be confiscated whenever they shall be destined or attempted to be carried to the enemy."

The immense number of articles, , which may serve indire&tly for the armament and equipment of vessels, are made contraband by the rule of the Directory, though they are not so by the article it profefTes to cite.

Art. 21. “ It is likewise agreed that the subjects and citizens of the two nations shall not do any acts of hostility or violence against each other, nor accept commissions or instructions so to act from any foreign prince or state enemies to the party; nor shall the enemies of one of the parties be permitted to invite or endeavour to inlift in their military service any of the subjects or citizens of the other party; and the laws against all such offences and aggressions shall be punctually executed. And if any subject or ci. tizen of the said parties respectively shall accept any foreign commission or letters of marque for arming any velfel to act as a privateer against the other party, it is hereby declared to be lawful for the laid party to treat and punish the faid subject or citizen having such commission or letters of marque as a pirate."

Rule 3. “ According to the twenty-first article of the treaty of London, of the 19th of November 1794, every individual known to be an American, who shall hold a commission given by the enemies of France, as well as every seaman of that nation, making a part of the crew of enemies ships, thall by that act be declared a pirate, and treated as such, without being allowed in any case to allege that he was forced to do it by violence, menaces, or otherwife.

The government of the United States has never formed a treaty comprehending an article in any degree finilar to this rule. It has never afsented to such ftipulations as they relate to its own citizens, or required them as they relate to those of other powers. The difference between the article and the rule requires no comment. Nor will the rule be commented on. The undersigned will only VOL. VII. LI

observe,

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