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tion, is the reciprocal guaranty, in the eleventh article of the treaty of alliance. This guaranty we are perfectly willing to ronounce. guaranty, by France, of the liberty, fovereignty, and independence of the United States, will add nothing to our fecurity; while, on the contrary, our guaranty of the poffeffions of France in America, will perpetually expofe us to the rifque and expenfe of war, or to difputes and queftions concerning our national faith.

When Mr. Genet was fent as the minifter of the French Republic to the United States, its fituation was embarraffed, and the fuccefs of its measures problematical. In fuch circumftances it was natural that France fhould turn her eye to the mutual guaranty : and accordingly it was required, in Mr. Genet's inftructions, to be " an effential claufe in the new treaty," which he was to propofe and on the ground" that it nearly concerned the peace and profperity of the French nation, that a people whose resources increafe beyond all calculation, and whom nature had placed fo near their rich colonies, fhould become interested, by their own engagements, in the prefervation of those islands.' But at this time, France, powerful by her victories, and fecure in her triumphs, may lefs regard the reciprocal guaranty with the United States, and be willing to relinquish it. As a fubftitute for the reciprocal guaranty, may be proposed a mutual renunciation of the fame territories and poffeffions, that were fubjects of the guaranty and renunciation in the fixth and eleventh articles of the treaty of alliance. Such a renunciation on our part, would obviate the reason affigned in the inftruction to Mr. Genet before cited, of future danger from the rapidly growing power of the United States. But if France infifts on the mutual guaranty, it will be neceffary to aim at fome modification of it.

The exifting engagement is of that kind which, by writers on the law of nations, is called a general guaranty; of course the cafus fœderis can never occur except in a defenfive war. The nature of this obligation is understood to be, that when a war really and truly defenfive exifts, the engaging nation is bound to furnish an effectual and adequate defence, in cooperation with the power attacked: whence it follows, that the nation may be required, in fome circumstances, to bring forward its whole force. The nature and extent of the fuccours demandable not being afcertained, 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 fuccours have the advantage of certainty, and are lefs liable to occafion war. On the other hand, a general guaranty allows a latitude for the exercife of judgment and difcretion.

On the part of the United States, inftead of troops or fhips of war, it will be convenient to ftipulate for a moderate fum of money or quantity of provifions, at the option of France: the provifions to be delivered at our own ports, in any future defenfive wars. The fum of money, or its value in provifions, ought not to exceed two hundred thousand dollars a year, during any fuch wars. The reciprocal stipulation, on the part of France, may be to furnish annually the like fum of money, or an equivalent in military ftores and cloathing for troops, at the option of the United States, to be delivered in the ports of France.

Particular caution, however, must be ufed, in difcuffing this fub. ject, not to admit any claims, on the ground of the guaranty, in relation to the exifting war; as we do not allow that the cafus fœderis applies to it. And if the war fhould continue after your arrival in France, and the question of the guaranty fhould not be mentioned on her part, you may yourfelves be filent on the subject, if you deem it moft prudent.

It will be proper here to notice fuch articles of the treaty of amity and commerce, between the United States and France, as have been differently conftrued by the two governments, or which it may be expedient to amend or explain.

ARTICLE 2. The affent of the United States, in their treaty with Great Britain, to the doctrine of the law of nations refpecting enemies' property in neutral fhips, and fhip timber and naval ftores, and in fome cafes provifions, as contraband of war, the French government has chofen to confider as a voluntary grant of favours, in refpect to commerce and navigation, to Great Britain, and that confequently the fame favours have become common to France. This conftruction is fo foreign from our ideas of the meaning and defign of this article, it fhews the neceffity of reviewing all the articles, and however clear they may appear, of attempting to obviate future mifconftructions, by declaratory explanations or a change of terms.

ARTICLE 5. France has repeatedly contended, that the impofition of fifty per cent. per ton, on French veffels arriving in the United States, is contrary to the fifth article of the treaty. The arguments in fupport of this pretenfion are unknown; but it is prefumed to be unfounded. The reciprocal right of laying" duties or impofts of what nature foever," equal to thofe impofed on the moft favoured nations, and without any other reftrictions, feems to be clearly fettled by the third and fourth articles. The fifth article appears to have been intended merely to define or qualify the rights of American veffels in France. It is however defirable that the question be understood, and all doubt concerning it removed. But the introduction of a principle of discrimination between the veffels of different foreign nations, and in derogation of the powers of Congress to raife revenue by uniform duties on any objects whatever, cannot be hazarded. The naturalization of French veffels will of courfe be confidered as inadmiffible.

ARTICLE 8. The ftipulation of doing us good offices, to fecure peace to the United States with the Barbary powers, has never yet procured us any advantage. If therefore the French Government lays any ftrefs on this ftipulation, as authorizing a claim for fome other engagement from us in favour of France, it may be abandoned; and efpecially if its abrogation can be applied as a fet-off against fome exifting French claim.

ARTICLE 14. If the alterations already propofed are made in the 23d and 24th articles, then the 14th article, as before obferved, must be abolifhed.

ARTICLE 17th. The conftruction put on this article by the government of the United States is conceived to be reasonable and just, and is therefore to be infifted on. The tribunals of the refpective countries will confequently be juftified in taking cognizance of all captures made

within their respective jurifdictions; or by illegal privateers; and thofe of one country will be deemed illegal which are fitted out in the country of the other remaining neutral: feeing to permit fuch arming would vio late the neutral duties of the latter.

It will be expedient to fix explicitly the reception to be given to public Ships of war of all nations. The French Miniflers have demanded, that the public fhips of the enemies of France, which at any time, and in any part of the world, had made prize of a French veffel, fhould be excluded from the ports of the United States; although they brought in no prize with them. In oppofition to this demand, we have contended that they were to be excluded only when they came in with French prizes. And the kind of asylum to be afforded in all other circumftances, is defcribed in Mr. Jefferson's Letter to Mr. Hammond, dated the 9th of September 1793, in the following words: "Thus then, the public Ships of war of "both nations [English and French] enjoy a perfect equality in our ports; ft, in cafes of urgent neceffity; 2d, in cafes of comfort or "convenience; and 3d, in the time they choose to continue." And fuch fhelter and accommodation are due to the public ships of all nations, on the principle of hospitality among friendly nations.

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It will also be expedient explicitly to declare that the right of afylum ftipulated for the armed veffels of France and their prizes, gives no right to make fale of those prizes.

But when prize flips are fo difabled as to be incapable of putting to fea again, until refitted, and when they are utterly disabled, fome provifion is neceflary relative to their cargoes. Both cafes occurred last year. The government permitted, though with hesitation and caution, the cargoes to be unloaded, one of the veffels to be repaired, and part of the prize goods fold, to pay for the repairs, and the cargo of the veffel that was found unfit ever to go to fea again, was allowed to be exported as prize goods, even in neutral bottoms. The doubts on these occafions arofe from the 24th article of the British treaty, forbidding the fale of the prizes of privateers, or the exchanging of the fame in any manner whatever. But as French prizes were entitled to an afylum in our ports, it was conceived to be a reasonable construction of it, to allow of fuch proceedings as those above mentioned, to prevent the total lofs of veffels and cargoes. The 25th article of the British treaty demands attention; as it is therein ftipulated, that no future treaty fhall be made that fhall be inconfiftent with that or the 24th article. Another doubt arose, whether the British treaty did not, in good faith, require the prohibition of the fale of prizes made by the National Ships of France, as well as of those made by her privateers; especially feeing our treaty with France gave her no right to ell any prizes whatever: but upon the whole, it was conceived that the United States having before allowed the fale of fuch prizes, and the prohibition in the 24th article of the treaty being distinctly pointed against the fale of the prizes of Privateers, it was thought proper to permit the former practice to continue, until the Executive fhould make and publish a prohibition of the fale of all prizes, or that Congrefs fhould pafs a prohibitory law.

ARTICLE 22d. If in new modelling the treaty with France, the total prohibition of the fale of prizes in the ports of the party remaining neutral fhould not be agreed on, at leaft the right of each power to make at its

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pleasure fuch prohibition, whether they are prizes of National fhips or privateers, fhould be acknowledged, for the reafon more than once fuggefted-to prevent a repetition of claims upon unfounded conftructions; fuch as under the prefent article, that a prohibition to an enemy of either party, is a grant to the other of the thing forbidden.

ARTICLES 23d and 24th. Thefe have been already confidered, and the alterations propofed have been mentioned.

There have been fo many unjuft caufes and pretences affigned for capturing and confifcating American veffels, it may perhaps be impoffible to guard again a repetition ofthem in any treaty which can be devised. To ftate the causes and pretences that have been already advanced by the Government of France, its agents and tribunals, as the grounds of the capture and condemnation of American veffels and cargoes, would doubtless give pain to any man of an ingenuous mind, who should be employed on the part of France to negociate another treaty, or a modifi cation of the treaties which exift. It is not defired therefore, to go far ther into detail on these matters, than fhall be neceffary to guard, by explicit ftipulations, against future misconstructions and the mischiefs they will naturally produce.

Under pretence that certain ports were furrendered to the English by the treachery of the French and Dutch inhabitants, Victor Hugues and Lebas, the ipecial agents of the Executive Directory, at Guadaloupe, have declared that all neutral veffels bound to or from fuch ports fhall be good prize.

Under the pretence that the British were taking all neutral vessels bound to or from French ports, the French agents at St. Domingo (San. thonax and others) decreed that all American veffels bound to or from English ports, fhould be captured; and they have fince declared fuch captured veffels to be good prize. The French confuls in Spain have, on the fame ground, condeinned a number of American veffels, merely because they were deftined to, or coming from, an English port.

Under the pretence, that the fea-letters or paffports prescribed by the commercial treaty for the mutual advantage of the merchants and navigators of the two nations, to fave their veffels from detention and other vexations, when met with at fea, by presenting fo clear a proof of the property, are an indifpenfible document to be found on board, the French confifcate American veffels destitute of them, even when they acknowledge the property to be American.

Because horfes and their military furniture, when destined to any enemy's port, are by the 24th article of the commercial treaty declared contraband, and as fuch by themselves only liable to confifcation, Hugues and Lebas decreed all neutral veffels, having horfes or any other contraband goods on board, should be good prize; and they accordingly condemned veffels and cargoes.

The ancient ordinances of the French monarchs required a variety of papers to be on board neutral veffels, the want of any one of which is made a caufe of condemnation; although the 25th article of the commercial treaty mentions what certificates fall accompany the merchant veffels and cargoes of each party, and which, by every reasonable conftruction, ought to give them protection.

It will therefore be advisable to guard against abuses by descending to particulars to describe the ships papers which all be required, and to

declare that the want of any other shall not be a caufe for confifcation: to fix the mode of manning veffels as to the officers, and the proportion of the crews who fhall be citizens; endeavouring to provide, in refpect to American veffels, that more than one third may be foreigners. provifion will be important to the Southern ftates, which have but few native feamen.

This

The marine ordinances of France will fhow what regulations have been required to be obferved by allied as well as neutral powers in general to ascertain and fecure the property of neutrals. Some of these regulations may be highly proper to be adopted; while others may be inconvenient and burthenfome. Your aim will be to render the documents and formalities as few and as fimple as will confist with a fair and regular commerce.

ARTICLES 25 and 27. These two articles fhould be rendered conformable to each other The 27th fays, that after the exhibition of the paport, the veffel fhall be allowed to pass without moleftation or fearch, without giving her chace, or forcing her to quit her intended courfe. The 25th requires that befides the paport, veffels fhall be furnished with certain certificates, which of course must also be exhibited. It will be expedient to add, that if in the face of such evidence, the armed vessel will carry the other into port, and the papers are found conformable to treaty, the captors fhall be condemned in all the charges, damages and interests thereof, which they fhall have caused. A provifion of this nature is made in the eleventh article of our treaty with the United Ne, therlands.

ARTICLE 28. The prohibited goods here mentioned have no relation to contraband; but merely to fuch as by the laws of the country are forbid den to be exported. Yet in the cafe of exporting horfes from Virginia, which no law prohibited, in the winter of 1796, this article was applied by the French Minifter to horfes, which by the French treaty are contraband of war. And a letter from the Minister to Victor Hugues and Lebas, informing them that the American Government refused to prevent fuch export of horfes by the British, is made one ground for their decree above mentioned.

ARTICLE 30. The veffels of the United States ought to be admitted into the ports of France in the fame manner as the veffels of France are admitted into the ports of the United States. But fuch a stipulation ought not to authorize the admiffion of veffels of either party into the ports of the other, into which the admiffion of all foreign veffels fhall be forbidden by the laws of France and of the United States, refpectively. With this reftriction, the principles of the 14th article of the treaty with Great Britain afford a liberal and unexceptionable precedent. A restriction like that here referred to will be found in the first paragraph of the third article of the British Treaty.

The commerce to the French colonies in the Eaft and West Indies, will doubtless be more or less restricted, according to the usage of other European nations. Yet on account of the difarranged condition of the French navigation, probably a larger latitude of trade with their colonies will be readily permitted for a term of years; and perhaps the mutual advantages thence refulting will be found fo great as to induce afterwards a prolongation of that term, to which the course or habit of bufinefs may contribute,