to him, with the President's permission, that Mr. Jay was instructed not to weaken our engagements to France. Neither then nor at any other time in official or unofficial conversation did I ever say to him, that nothing of a commercial nature was contemplated; or that nothing but the controversies under the old treaty, and the spoliations were contemplated.

Mr. Fauchet some time ago said to me, that he understood from what I said, that Mr. Jay was not authorized to treat of commercial matters-I told him, that he misunderstood me-No letter has ever passed upon this subject. EDM: RANDOLPH.

No. 26.

TRANSLATION.

The Minister Plenipotentiary of the French Republick near the United States, to Mr. Randolph, Secretary of State of the United States. Philadelphia, 12th Messidor, 3d year of the French Republick, one and indivisible. (June 30, 1795, O. S.)

SIR, I have received the treaty of amity, commerce and navigation, concluded between the United States and Great Britain, of which the President has been pleased that I should be possessed, in order to enable me to make such observations thereon as I might judge proper. This frank measure is to me a sure guaranty of the friendship of the American government towards France, and of the fidelity with which it always marks its conduct towards a faithful ally. It is therefore with confidence that I am about to submit the reflections to which the reading of the treaty has given birth. They will not be founded, sir, upon general questions-they shall be confined merely to the stipulations of the treaty concluded with England, which, contrary to the interests of France, appear to me to destroy the effect of her treaty with the United States. I shall not speak of the 12th article, since that is suspended. I shall not represent to you how injurious it may be to France and the United States. It necessarily

paralyzes the commerce of the United States with the French colonies. In fact, would an American merchant be willing to treat with our colonies for the exportation of

produce, which he cannot vend in Europe? Is not this an indirect means of preventing the colonies from participating in advantages which the English reserve to themselves? But, sir, this is not the only article upon which I can present observations to you.

The 17th, 18th, 24th and 25th articles appear to merit great attention, when we compare them with the 23d, 24th and 17th of our treaty. Indeed, sir, subsequent to the 17th, which states that the contracting parties agree that the respective vessels may be arrested and detained upon just suspicion that they are laden with merchandises belonging to an enemy, or that they are carrying to the enemy articles which are contraband of war, &c. is the 18th article describing those articles and which states, "It is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or sea, such as cannon, muskets, mortars, petards, bombs, grenadoes, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gunpow der, match, saltpetre, balls, pikes, swords, head pieces, cuirasses, halberts, lances, javelins, horse furniture, holsters, belts, and generally all other implements of war, as also 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 all the above articles are hereby declared to be just objects of confiscation whenever they are attempted to be carried to an enemy." The 23d article of the treaty between France and the United States, which secures the liberty of commerce to the citizens of both countries, contains this stipulation. "It is stipulated by the present treaty, that free ships shall make free goods, and that every thing shall be judged free which may be found on board of the vessels belonging to the subjects of the contracting parties, if even the lading or a part thereof should belong to the enemies of one of them; it being nevertheless understood that contraband articles shall be always excepted." The 24th article explains the articles of contraband and prohibited merchandises in the following manner, "Under the name of contraband or prohibited merchandises are comprehended, cannon, bombs with their fusees, and other things thereto belonging, bullets, gunpowder, matches, pikes, swords, lances, spears, hal

berts, mortars, petards, grenades, saltpetre, muskets, musket ball, bucklers, helmets, breast plates, coats of mail, and the like kinds of arms, proper for arming soldiers, musket rests, belts, horses with their furniture, and all other warlike instruments whatever. These mer

chandises which follow shall not be reckoned among contraband or prohibited goods; that is to say, 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 uncoined, 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, transmitted 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, tar, peltry, cordage, cables, sails, sail cloth, &c. and every

other thing proper for the construction or repair of vessels, without apprehending any hindrance on our part; while by the articles of the treaty with England, the United 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 therefore 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 respective ports of the two contracting nations-and article 24th states, "It shall not be lawful for any foreign privateers, (not being subjects or citizens of either 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 commissions." 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 arrive 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 officers 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 mentioned 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, par

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 operate 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 respective 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 Britain, 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 advantages which article 17th 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 inconsistent with this or the preceding article ;" which seems to prevent the establishing of a new negotiation between 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